Exhibit 10.14


 


MICROBIA, INC.


 


301 BINNEY STREET

CAMBRIDGE, MA


 


TABLE OF CONTENTS


 


	
  ARTICLE
  1. BASIC TERMS

  	
   

  	
  5

  
	
  1.01.

  	
   

  	
  Date
  of Lease:

  	
   

  	
  5

  
	
  1.02.

  	
   

  	
  Landlord.

  	
   

  	
  5

  
	
  1.03.

  	
   

  	
  Tenant:

  	
   

  	
  5

  
	
  1.04.

  	
   

  	
  Tenant
  Guarantor:

  	
   

  	
  5

  
	
  1.05.

  	
   

  	
  Address
  of Property:

  	
   

  	
  5

  
	
  1.06.

  	
   

  	
  Building
  and Property:

  	
   

  	
  5

  
	
  1.07.

  	
   

  	
  Premises:

  	
   

  	
  5

  
	
  1.08.

  	
   

  	
  Tenant’s
  Pro Rata Share:

  	
   

  	
  6

  
	
  1.09.

  	
   

  	
  Term:

  	
   

  	
  6

  
	
  1.10.

  	
   

  	
  Commencement
  and Delivery Dates:

  	
   

  	
  6

  
	
  1.11.

  	
   

  	
  Permitted
  Uses:

  	
   

  	
  8

  
	
  1.12.

  	
   

  	
  Broker(s):

  	
   

  	
  8

  
	
  1.13.

  	
   

  	
  Management
  Company:

  	
   

  	
  8

  
	
  1.14.

  	
   

  	
  Letter
  of Credit:

  	
   

  	
  8

  
	
  1.15.

  	
   

  	
  Parking:

  	
   

  	
  8

  
	
  1.16.

  	
   

  	
  Base
  Rent:

  	
   

  	
  8

  
	
  1.17.

  	
   

  	
  Additional
  Rent:

  	
   

  	
  9

  
	
  1.18.

  	
   

  	
  Intentionally
  omitted

  	
   

  	
  9

  
	
  1.19.

  	
   

  	
  Address
  of Landlord for Notices:

  	
   

  	
  9

  
	
  1.20.

  	
   

  	
  Original
  Address of Tenant for Notices:

  	
   

  	
  10

  
	
  1.21.

  	
   

  	
  Finish
  Work:

  	
   

  	
  10

  
	
  1.22.

  	
   

  	
  Finish
  Work Allowance:

  	
   

  	
  10

  
	
  1.23.

  	
   

  	
  Exhibits:

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  2. PREMISES AND APPURTENANT RIGHTS

  	
   

  	
  15

  



 

















 


	
  2.01.

  	
   

  	
  Lease
  of Premises; Appurtenant Rights

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  3. LEASE TERM

  	
   

  	
  18

  
	
  3.01.

  	
   

  	
  Lease
  Term; Delay in Commencement

  	
   

  	
  18

  
	
  3.02.

  	
   

  	
  Hold
  Over

  	
   

  	
  19

  
	
  3.03.

  	
   

  	
  Right
  to Extend

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  4. RENT

  	
   

  	
  22

  
	
  4.01.

  	
   

  	
  Base
  Rent

  	
   

  	
  22

  
	
  4.02.

  	
   

  	
  Additional
  Rent

  	
   

  	
  22

  
	
  4.03.

  	
   

  	
  Late
  Charge

  	
   

  	
  23

  
	
  4.04.

  	
   

  	
  Interest

  	
   

  	
  24

  
	
  4.05.

  	
   

  	
  Method
  of Payment

  	
   

  	
  24

  
	
  4.06.

  	
   

  	
  Audit

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  5. TAXES

  	
   

  	
  26

  
	
  5.01.

  	
   

  	
  Taxes

  	
   

  	
  26

  
	
  5.02.

  	
   

  	
  Definition
  of “Taxes”

  	
   

  	
  27

  
	
  5.03.

  	
   

  	
  Personal
  Property Taxes

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  6. UTILITIES

  	
   

  	
  28

  
	
  6.01.

  	
   

  	
  Utilities

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  7. INSURANCE

  	
   

  	
  30

  
	
  7.01.

  	
   

  	
  Coverage

  	
   

  	
  30

  
	
  7.02.

  	
   

  	
  Avoid
  Action Increasing Rates

  	
   

  	
  31

  
	
  7.03.

  	
   

  	
  Waiver
  of Subrogation

  	
   

  	
  31

  
	
  7.04.

  	
   

  	
  Landlord’s
  Insurance

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  8. OPERATING EXPENSES

  	
   

  	
  32

  
	
  8.01.

  	
   

  	
  Operating
  Expenses

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  9. USE OF PREMISES

  	
   

  	
  35

  
	
  9.01.

  	
   

  	
  Permitted
  Uses

  	
   

  	
  35

  
	
  9.02.

  	
   

  	
  Indemnification

  	
   

  	
  35

  
	
  9.03.

  	
   

  	
  Compliance
  With Legal Requirements

  	
   

  	
  36

  
	
  9.04.

  	
   

  	
  Hazardous
  Substances

  	
   

  	
  37

  
	
  9.05.

  	
   

  	
  Signs
  and Auctions

  	
   

  	
  40

  
	
  9.06.

  	
   

  	
  Landlord’s
  Access

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  10. CONDITION AND MAINTENANCE OF PREMISES AND PROPERTY

  	
   

  	
  41

  
	
  10.01.

  	
   

  	
  Existing
  Conditions

  	
   

  	
  41

  
	
  10.02.

  	
   

  	
  Exemption
  and Limitation of Landlord’s Liability

  	
   

  	
  42

  
	
  10.03.

  	
   

  	
  Landlord’s
  Obligations

  	
   

  	
  43

  
	
  10.04.

  	
   

  	
  Tenant’s
  Obligations

  	
   

  	
  44

  



 


2

















 


	
  10.05.

  	
   

  	
  Tenant
  Work

  	
   

  	
  45

  
	
  10.06.

  	
   

  	
  Condition
  upon Termination

  	
   

  	
  50

  
	
  10.07.

  	
   

  	
  Decommissioning
  of the Premises

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  11. ROOFTOP LICENSE; ANTENNAS

  	
   

  	
  51

  
	
  11.01.

  	
   

  	
  Rooftop
  License

  	
   

  	
  51

  
	
  11.02.

  	
   

  	
  Installation
  and Maintenance of Rooftop Equipment

  	
   

  	
  52

  
	
  11.03.

  	
   

  	
  Interference
  by Rooftop Equipment

  	
   

  	
  53

  
	
  11.04.

  	
   

  	
  Relocation
  of Rooftop Equipment

  	
   

  	
  54

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  12. DAMAGE OR DESTRUCTION; CONDEMNATION

  	
   

  	
  54

  
	
  12.01.

  	
   

  	
  Damage
  or Destruction of Premises

  	
   

  	
  54

  
	
  12.02.

  	
   

  	
  Eminent
  Domain

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  13. ASSIGNMENT AND SUBLETTING

  	
   

  	
  57

  
	
  13.01.

  	
   

  	
  Landlord’s
  Consent Required

  	
   

  	
  57

  
	
  13.02.

  	
   

  	
  Landlord’s
  Consent

  	
   

  	
  58

  
	
  13.03.

  	
   

  	
  No
  Release

  	
   

  	
  59

  
	
  13.04.

  	
   

  	
  Right
  of Termination or Recapture

  	
   

  	
  60

  
	
  13.05.

  	
   

  	
  Additional
  Procedures

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  14. EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  61

  
	
  14.01.

  	
   

  	
  Covenants
  and Conditions

  	
   

  	
  61

  
	
  14.02.

  	
   

  	
  Events
  of Default

  	
   

  	
  61

  
	
  14.03.

  	
   

  	
  Remedies
  for Default

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  15. LETTER OF CREDIT

  	
   

  	
  64

  
	
  15.01.

  	
   

  	
  Letter
  of Credit

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  16. PROTECTION OF LENDERS/GROUND LANDLORD

  	
   

  	
  67

  
	
  16.01.

  	
   

  	
  Subordination
  and Superiority of Lease

  	
   

  	
  67

  
	
  16.02.

  	
   

  	
  Attornment

  	
   

  	
  68

  
	
  16.03.

  	
   

  	
  Rent
  Assignment

  	
   

  	
  69

  
	
  16.04.

  	
   

  	
  Other
  Instruments

  	
   

  	
  69

  
	
  16.05.

  	
   

  	
  Estoppel
  Certificates

  	
   

  	
  69

  
	
  16.06.

  	
   

  	
  Ground
  Lease

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  17. MISCELLANEOUS PROVISIONS

  	
   

  	
  71

  
	
  17.01.

  	
   

  	
  Landlord’s
  Consent Fees

  	
   

  	
  71

  
	
  17.02.

  	
   

  	
  Notice
  of Landlord’s Default

  	
   

  	
  71

  
	
  17.03.

  	
   

  	
  Quiet
  Enjoyment

  	
   

  	
  71

  
	
  17.04.

  	
   

  	
  Interpretation

  	
   

  	
  71

  
	
  17.05.

  	
   

  	
  Notices

  	
   

  	
  72

  
	
  17.06.

  	
   

  	
  No
  Recordation

  	
   

  	
  72

  
	
  17.07.

  	
   

  	
  Corporate
  Authority

  	
   

  	
  72

  
							



 


3

















 


	
  17.08.

  	
   

  	
  Joint
  and Several Liability

  	
   

  	
  73

  
	
  17.09.

  	
   

  	
  Force
  Majeure

  	
   

  	
  73

  
	
  17.10.

  	
   

  	
  Limitation
  of Warranties

  	
   

  	
  73

  
	
  17.11.

  	
   

  	
  No
  Other Brokers

  	
   

  	
  73

  
	
  17.12.

  	
   

  	
  Applicable
  Law and Construction

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  18. RIGHT OF FIRST OFFER

  	
   

  	
  74

  
	
  18.01.

  	
   

  	
  Right
  of First Offer

  	
   

  	
  74

  
	
  18.02.

  	
   

  	
  Tenant’s
  Rights are Personal

  	
   

  	
  76

  
	
  18.03.

  	
   

  	
  Additional
  Limitations

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  19. RIGHT OF FIRST REFUSAL

  	
   

  	
  76

  
	
  19.01.

  	
   

  	
  Right
  of First Refusal

  	
   

  	
  76

  
	
  19.02.

  	
   

  	
  Additional
  Limitations

  	
   

  	
  77

  
	
  19.03.

  	
   

  	
  Arbitration

  	
   

  	
  78

  



 


4














 


MICROBIA, INC.


 


301 BINNEY STREET

CAMBRIDGE, MA


 


ARTICLE 1. BASIC TERMS


 


The
following terms used in this Lease shall have the meanings set forth below.


 


	
  1.01.  Date of Lease:

  	
   

  	
  As
  of January 12, 2007

  
	
   

  	
   

  	
   

  
	
  1.02.  Landlord:

  	
   

  	
  Rogers
  Street, LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
  1.03.  Tenant:

  	
   

  	
  Microbia, Inc.,
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  1.04.  Tenant
  Guarantor:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  1.05.  Address of
  Property:

  	
   

  	
  301
  Binney Street Cambridge, MA 02141

  
	
   

  	
   

  	
   

  
	
  1.06.  Building and
  Property:

  	
   

  	
  The
  building containing 417,131 rentable square feet (the “Building”) in
  the City of Cambridge, MA, located on a parcel of land described in Exhibit 1.06
  attached hereto and known as 301 Binney Street (the Building and such parcel
  of land hereinafter being collectively referred to as the “Property”).

  
	
   

  	
   

  	
   

  
	
  1.07.  Premises:

  	
   

  	
  112,516
  rentable square feet in the aggregate, comprised of the entire second floor
  of the Building, a portion of the first (1st) floor of
  the Building (the “First Floor Space”), and ancillary shaft and
  penthouse space on other floors of the Building, each as further described on
  Exhibit 1.07 (the “Premises”), based on the Measurement
  Standard as defined in, and subject to remeasurement pursuant to,
  Section 2.01(e).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  It
  is the Tenant’s intention to take occupy the Premises in four phases (each
  such phase, a “Phase”). The Phases include (a) the First Floor Space,
  which shall consist of at least 10,000 rentable

  



 

















 


	
   

  	
   

  	
  square
  feet, (b) a maximum of 20,000 rentable square feet on the second floor
  of the Building (the “Office Space”), (c) 21,856 (subject
  to the following paragraph) rentable square feet on the second floor of the
  Building (the “First Lab Space”), and
  (d) 48,378 (subject to the following paragraph) rentable square feet on
  the second floor of the Building ( the “Final Lab Space”).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notwithstanding anything in the immediately preceding
  paragraph to the contrary, the exact
  rentable square footage of each such Phase, including the First Lab Space and
  the Final Lab Space, may vary based on Tenant’s programming for such Phase,
  but in no event shall the First Floor Space consist of less than 10,000
  rentable square feet, the Office Space consist of more than 20,000 rentable
  square feet, or the aggregate total rentable square feet of the Premises be
  less than 112,516 rentable square feet on account of the provisions of this
  paragraph.

  
	
   

  	
   

  	
   

  
	
  1.08.  Tenant’s Pro
  Rata Share:

  	
   

  	
  28.37%,
  subject to adjustment per Section 4.02(c).

  
	
   

  	
   

  	
   

  
	
  1.09.  Term:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   
  Initial Term:

  	
   

  	
  Subject
  to the right to extend set forth in Section 3.03, and the terms and
  conditions of this Lease, eight (8) Lease Years from the first Rent
  Commencement Date to occur until the last day of the eighth Lease Year.

  
	
   

  	
   

  	
   

  
	
   
  Extension Terms:

  	
   

  	
  Two
  (2) additional terms of five (5) Lease Years each.

  
	
   

  	
   

  	
   

  
	
   
  Lease Year:

  	
   

  	
  The
  first Lease Year begins on the first Rent Commencement Date to occur and ends
  on the last day of the twelfth full calendar month after said Rent
  Commencement Date. Each subsequent Lease Year ends twelve months after the
  preceding one.

  
	
   

  	
   

  	
   

  
	
  1.10.  Commencement
  and Delivery Dates:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
    
  Lease Commencement

  	
   

  	
  The
  date hereof. Notwithstanding anything herein

  



 


6

















 


	
   Date:

  	
   

  	
  to
  the contrary, it is the intent of the parties that neither Landlord nor
  Tenant shall have any obligation to each other with respect to the operation,
  maintenance, repair, or insurance of the Premises or Property, or any
  obligation to indemnify each other with respect thereto, prior to the
  Delivery Date (other than the obligations each party has to each other with
  respect to the design and construction of the Base Building Work and Finish
  Work and such obligations as are clearly unrelated to Tenant’s occupancy of
  the Premises for the construction of the Finish Work and the conduct of its
  business).

  
	
   

  	
   

  	
   

  
	
   Estimated Delivery Date:

  	
   

  	
  August 31,
  2007

  
	
   

  	
   

  	
   

  
	
   Rent Commencement Date:

  	
   

  	
  The
  Rent Commencement Date for the Office Space shall occur on the earlier to
  occur of (x) the later to occur of (a) the date that is four months
  after the Delivery Date or (b) January 1, 2008, or (y) the
  date upon which Tenant first occupies all or any portion of the Office Space
  for the conduct of its business.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  Rent Commencement Date for the First Floor Space shall occur on the earlier
  to occur of (x) the later to occur of (a) the date that is nine
  months after the Delivery Date or (b) June 1, 2008, or (y) the
  date upon which Tenant first occupies all or any portion of the First Floor
  Space for the conduct of its business.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  Rent Commencement Date for the First Lab Space shall occur on the earlier to
  occur of (x) January 1, 2009, or (y) the date upon which
  Tenant first occupies all or any portion of the First Lab Space for the
  conduct of its business.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  Rent Commencement Date for the Final Lab Space shall occur on the earlier to
  occur of (x) January 1, 2011, or (y) the date upon which
  Tenant first occupies all or any portion of the Final Lab Space for the
  conduct of its business.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notwithstanding
  any term or provision of this Lease to the contrary (including without
  limitation Section

  



 


7

















 


	
   

  	
   

  	
  10.05),
  neither (i) any repair, maintenance or work arising from any obligation
  of Tenant to comply with applicable law or regulation or direction of a
  governmental authority, nor (ii) any installation of demising walls and
  doors on the second floor of the Premises shall constitute “occupancy” for
  the purposes of determining the Rent Commencement Date in the applicable
  portion of the Premises or otherwise cause any Rent Commencement Date to
  occur.

  
	
   

  	
   

  	
   

  
	
  1.11. 
  Permitted Uses:

  	
   

  	
  Technical
  office for research and development, laboratory and research facility, and
  subject to applicable requirements of the Cambridge Zoning Ordinance, limited
  manufacturing as an accessory use.

  
	
   

  	
   

  	
   

  
	
  1.12. 
  Broker(s):

  	
   

  	
  Richards
  Barry Joyce & Partners and CBRE/Lynch Murphy Walsh Advisors

  
	
   

  	
   

  	
   

  
	
  1.13. 
  Management Company:

  	
   

  	
  Hallkeen
  Management

  
	
   

  	
   

  	
   

  
	
  1.14. 
  Letter of Credit:

  	
   

  	
  Initially,
  $1,924,508.60, subject to changes pursuant to the provisions of
  Section 15.01, and increasing to the final aggregate amount of
  $7,521,726.60, subject to changes pursuant to Exhibit 10.04(c).

  
	
   

  	
   

  	
   

  
	
  1.15. 
  Parking:

  	
   

  	
  74
  parking spaces; the cost of each parking pass currently being $225 per month,
  subject to the provisions of Section 2.01(d) regarding potential
  increases in such number and rate.

  
	
   

  	
   

  	
   

  
	
  1.16. 
  Base Rent:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
    Initial Term:

  	
   

  	
  Initially,
  $49.25 per rentable square foot per annum for the Office Space and $60.50 per
  rentable square foot per annum for the remainder of the Premises, increasing
  in each case on the fourth anniversary of the first Rent Commencement Date to
  occur (the “Interim Date”) to reflect any increase in the Consumer
  Price Index for all Urban Wage Earners and Clerical Workers for Boston,
  Massachusetts published by the Bureau of Labor Statistics of the United
  States Department of Labor (base year 1982-84 = 100 (the “CPI”) over
  the Base Price Index as

  



 


8

















 


	
   

  	
   

  	
  more
  particularly set forth in Section 3.03(e). Notwithstanding the
  foregoing, any such increase in CPI shall not exceed four percent (4%) per
  year compounded annually.

  
	
   

  	
   

  	
   

  
	
   
  Extension Terms:

  	
   

  	
  The
  greater of (x) Market Rent, as determined pursuant to Section 3.03,
  or (y) the last effective Base Rent adjusted at the beginning of each
  Extension Term, if any, to reflect any increase in the CPI as more
  particularly set forth in Section 3.03(e). In no event shall the Base
  Rent for any Extension Term be less than the Base Rent last in effect for the
  previous Term as modified by the Adjustment, as defined in
  Section 3.03(e). Notwithstanding the foregoing, any such increase in CPI
  shall not exceed four percent (4%) per year compounded annually.

  
	
   

  	
   

  	
   

  
	
  1.17.  Additional
  Rent:

  	
   

  	
  All
  amounts payable by Tenant under this Lease other than Base Rent, including
  without limitation:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (i)      Tenant’s Pro Rata Share of Taxes (Article 5);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)     Tenant’s Pro Rata Share of Landlord’s expenses for
  utilities (Article 6);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)    Tenant’s Pro Rata Share of Landlord’s insurance
  premiums related to the Building (Article 7) (See Section 4.02);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iv)    Tenant’s Pro Rata Share of Operating Expenses
  (Article 8)(see Section 4.02);

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (v)     and Additional Finish Work Amounts (Exhibit 10.04(c)),

  
	
   

  	
   

  	
   

  
	
  1.18.  Intentionally
  omitted.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.19.   Address
  of Landlord for Notices:

  	
   

  	
  Lyme
  Properties, LLC

  101 Main Street, 18th Floor

  Cambridge, MA 02142

  Attn: David Clem and Robert L. Green

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DLA
  Piper US LLP

  33 Arch Street, 26th Floor

  Boston, MA 02110 

  Attn: Greg D. Peterson, Esquire

  



 


9

















 


	
  1.20.  Original
  Address of Tenant for Notices:

  	
   

  	
  Microbia, Inc.

  320 Bent Street

  Cambridge, MA 02141

  Attn: Michael Higgins

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ropes &
  Gray LLP

  One International Place

  Boston, MA 02110

  
	
   

  	
   

  	
  Attn:
  Walter R. McCabe III, Esq.

  
	
   

  	
   

  	
   

  
	
  1.21.  Finish Work:

  	
   

  	
  All
  to be constructed by Tenant as further set forth in
  Section 10.04(c) and Exhibit 10.04(c).

  
	
   

  	
   

  	
   

  
	
  1.22.  Finish Work
  Allowance:

  	
   

  	
  $125
  per rentable square foot with respect to the First Floor Space; $50 per
  rentable square foot with respect to the Office Space; $125 per rentable
  square foot with respect to the First Lab Space; and $125 per rentable square
  foot with respect to the remainder of the Premises. The foregoing amounts are
  subject to change on account of Tenant’s election to use the Additional
  Allowance as further set forth in Exhibit 10.04(c).

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notwithstanding anything herein to the contrary, the Finish Work Allowances (and Additional
  Allowance, if applicable) set forth for each Phase may vary based on the
  actual rentable square footage of each Phase (but subject to the cumulative
  minimum rentable square footage amount in Section 1.07), as described in
  Section 2.01(e), below.

  
	
   

  	
   

  	
   

  
	
  1.23.  Exhibits:

  	
   

  	
  Exhibit 1.06:

  Exhibit 1.07:
  

  Exhibit 2.01(e):
  

  Exhibit 3.01:

  Exhibit 6.01

  Exhibit 9.01:

  Exhibit 9.04(a):

  Exhibit 10.03(a):
  

  Exhibit 10.04
  (c) 

  	
  Property

  Premises

  BOMA
  Measurement Standard

  Form of
  Confirmation of Delivery Date

  Utility
  Service Switching Points

  Rules and
  Regulations 

  Hazardous
  Substances 

  Base
  Building Work 

  Finish
  Work Letter

  



 


10

















 


	
   

  	
  Exhibit 10.05(b):
  

  Exhibit 10.05(c):
  

  Exhibit 15.01:
  

  Exhibit 16.01:
  

   

  Exhibit 16.06:
  

  Exhibit 19.01

  	
  Construction
  Documents 

  Tenant
  Work Insurance Schedule 

  Form of
  Letter of Credit 

  Form of
  Lender’s Subordination, Nondisturbance and Attornment Agreement 

  Form of
  Ground Landlord’s Non-Disturbance Agreement 

  RFR
  Space

  



 


11














 


INDEX OF DEFINED TERMS


 


	
  320
  Bent Lease

  	
   

  	
  61

  
	
  320
  Bent Street

  	
   

  	
  59

  
	
  AAA

  	
   

  	
  25

  
	
  Additional
  Rent

  	
   

  	
  22

  
	
  Adjustment

  	
   

  	
  21

  
	
  Antenna

  	
   

  	
  52

  
	
  Antenna
  Installation Area

  	
   

  	
  52

  
	
  Arbitration
  Notice

  	
   

  	
  78

  
	
  Arbitrator

  	
   

  	
  21

  
	
  Audit
  Period

  	
   

  	
  25

  
	
  Base
  Building Construction Plans

  	
   

  	
  17

  
	
  Base
  Building Work

  	
   

  	
  43

  
	
  Base
  Price Index

  	
   

  	
  21

  
	
  Building

  	
   

  	
  5

  
	
  Business
  Days

  	
   

  	
  21

  
	
  Construction
  Documents

  	
   

  	
  47

  
	
  Core
  Building Systems

  	
   

  	
  46

  
	
  CPI

  	
   

  	
  8

  
	
  Default
  Rate

  	
   

  	
  24

  
	
  Delivery
  Date

  	
   

  	
  18

  
	
  Environmental
  Incidents

  	
   

  	
  39

  
	
  Environmental
  Law(s)

  	
   

  	
  37

  
	
  Event
  of Default

  	
   

  	
  61

  
	
  Extension
  Term

  	
   

  	
  20

  
	
  Final
  Lab Space

  	
   

  	
  5

  
	
  Finish
  Work Letter

  	
   

  	
  45

  
	
  First
  Extension Term

  	
   

  	
  20

  
	
  First
  Floor Space

  	
   

  	
  5

  
	
  First
  Lab Space

  	
   

  	
  5

  
	
  Ground
  Landlord

  	
   

  	
  69

  
	
  Ground
  Lease

  	
   

  	
  69

  
	
  Hazardous
  Substances

  	
   

  	
  38

  
	
  Indemnitees

  	
   

  	
  35

  
	
  Interim
  Date

  	
   

  	
  8

  
	
  Lab
  Standards

  	
   

  	
  38

  
	
  Legal
  Requirement

  	
   

  	
  36

  
	
  Letter
  of Credit

  	
   

  	
  64

  
	
  Market
  Rent

  	
   

  	
  20

  
	
  Material
  Service Interruption

  	
   

  	
  29

  
	
  Measurement
  Standard

  	
   

  	
  18

  
	
  Minor
  Work

  	
   

  	
  46

  
	
  NDA

  	
   

  	
  70

  



 


12

















 


	
  Offer
  Notice

  	
   

  	
  75

  
	
  Offered
  Space

  	
   

  	
  75

  
	
  Office
  Space

  	
   

  	
  5

  
	
  Operating
  Costs

  	
   

  	
  22

  
	
  Operating
  Expenses

  	
   

  	
  32

  
	
  Outside
  Delivery Date

  	
   

  	
  18

  
	
  Permitted
  Transfer

  	
   

  	
  58

  
	
  Phase

  	
   

  	
  5

  
	
  Premises

  	
   

  	
  5

  
	
  Profits

  	
   

  	
  59

  
	
  Project

  	
   

  	
  33

  
	
  Property

  	
   

  	
  5

  
	
  PTDM
  Agreement

  	
   

  	
  17

  
	
  Related
  Entity

  	
   

  	
  58

  
	
  Reletting
  Expenses

  	
   

  	
  62

  
	
  Rent

  	
   

  	
  22

  
	
  RFO
  Space

  	
   

  	
  75

  
	
  RFR
  Acceptance Notice

  	
   

  	
  77

  
	
  RFR
  Notice

  	
   

  	
  76

  
	
  RFR
  Space

  	
   

  	
  76

  
	
  Right
  of First Offer

  	
   

  	
  75

  
	
  Rooftop
  Equipment

  	
   

  	
  52

  
	
  Rooftop
  Installation Areas

  	
   

  	
  52

  
	
  Rules and
  Regulations

  	
   

  	
  35

  
	
  Second
  Extension Term

  	
   

  	
  20

  
	
  Service
  Interruption

  	
   

  	
  29

  
	
  Service
  Interruption Notice

  	
   

  	
  29

  
	
  Substantial
  Completion

  	
   

  	
  43

  
	
  Substantially
  Completed

  	
   

  	
  43

  
	
  Successor
  Entity

  	
   

  	
  58

  
	
  Target
  Delivery Date

  	
   

  	
  75

  
	
  Taxes

  	
   

  	
  27

  
	
  Tenant
  Contractor

  	
   

  	
  48

  
	
  Tenant
  Work

  	
   

  	
  45

  
	
  Tenant’s
  Architect

  	
   

  	
  47

  
	
  Tenant’s
  Audit Notice

  	
   

  	
  25

  
	
  Tenant’s
  Equipment

  	
   

  	
  52

  
	
  Tenant’s
  Termination Notice

  	
   

  	
  18

  
	
  Term

  	
   

  	
  74

  
	
  Third
  Arbitrator

  	
   

  	
  21

  
	
  Total
  Operating Costs

  	
   

  	
  22

  
	
  Transfer

  	
   

  	
  58

  
	
  Transferee

  	
   

  	
  58

  
	
  Utility
  Service

  	
   

  	
  28

  



 


13

















 


	
  Utility
  Service Provider

  	
   

  	
  29

  
	
  Utility
  Switching Points

  	
   

  	
  28

  



 


14

















 


ARTICLE 2. PREMISES AND APPURTENANT RIGHTS


 


2.01. Lease of Premises; Appurtenant Rights


 


Landlord
hereby leases the Premises to Tenant, and Tenant hereby leases the Premises
from Landlord, for the Term, subject to all matters of record, all legal requirements
and all matters referred to below. Subject to Landlord’s Rules and
Regulations, Tenant shall have access to the Premises twenty-four (24) hours a
day, seven (7) days a week.


 


(a)           Exclusions.
Except as otherwise expressly provided herein, the Premises exclude common
areas and facilities of the Property, including without limitation exterior
walls, the common stairways and stairwells, entranceways and the main lobby,
elevators and elevator wells, fan rooms, electric and telephone closets (except
on floors leased entirely by tenant), janitor closets (except on floors leased
entirely by tenant), freight elevator vestibules, and pipes, ducts, conduits,
wires and appurtenant fixtures located within the Premises but serving other
parts of the Property (exclusively or in common) and other common areas and
facilities from time to time designated as such by Landlord. If the Premises
include less than the entire rentable area of any floor, then the Premises also
exclude the common corridors, elevator lobby and toilets located on such floor.


 


(b)           Appurtenant
Rights. Tenant shall have, as appurtenant to the Premises, rights, in
common with others (subject to the Rules and Regulations), to use the
common areas and facilities of the Property, including, but not limited to
passenger elevators, service elevators, the loading dock in the Building, the
Building lobby, to install, repair and maintain wires, piping, vents, flues,
shafts in common shafts and common plenums, to use vents and ducts serving the
Premises and located outside the Premises, to the parking rights set out in Section 2.01(d),
to the signage rights as set out in Section 9.05, to use the rooftop as
set out in Article 11, to use common area restrooms, and the right to
reasonable access to the foregoing areas (including, without limitation, for
the purposes of installing, repairing and maintaining Tenant alterations and
additions as permitted under this Lease). In addition, Tenant shall have the
appurtenant right to access 320 Bent Street (as defined in Section 13.02)
via the underground tunnel between the Building and 320 Bent Street, subject to
the Rules and Regulations (as defined in Section 9.01) and Landlord’s
reasonable security measures (which appurtenant right may be provided by use of
a cross-easement if 320 Bent Street is ever held in separate ownership from the
Building).


 


(c)               Reservations.
In addition to other rights reserved herein or by law, Landlord reserves the
right from time to time, without unreasonable (except in emergency)
interference with Tenant’s rights hereunder, including without limitation
Tenant’s use of and access to the Premises: (i) to make additions to or
reconstructions of the Building and to install, use, maintain, repair, replace
and relocate for service to the Premises and other parts of the Building, or
either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever
located in the Premises, the Building, or elsewhere in the Property (subject to
the provisions of Section 9.06); (ii) to alter or relocate any other common
area or facility,


 

















 


including
the drives, lobbies and entrances (provided that Tenant’s rights under this
Lease are not materially and adversely affected), and (iii) to grant
easements and other rights with respect to the Property, provided such grants
do not materially and adversely affect Tenant’s rights under this Lease.
Installations, replacements and relocations within the Premises referred to in
clause shall be located as far as practicable above ceiling surfaces, below
floor surfaces or within perimeter walls of the Premises, shall not materially
affect the useable square footage of the Premises, and shall not permit other
parties to use the shafts dedicated exclusively to Tenant and shown as part of
the Premises in Exhibit 1.07, and Landlord shall minimize the disruption
to the Tenant to the degree reasonably practicable.


 


(d)               Parking. During the Term, Landlord shall
provide Tenant with parking passes for use by standard size automobiles and
small utility vehicles in an amount equal to the number of parking passes set
forth in Section 1.15 and at the initial cost set forth in Section 1.15.
So long as Tenant leases premises at 320 Bent Street, the use of such passes in
connection with Tenant’s use of such premises shall be permitted so long as
such use is otherwise in compliance with the terms of this Section 2.01(d).
The parking spaces will be located in the parking garage located at the
Property. Use of the parking spaces shall be on a non-reserved basis. If any
other tenants in the Building are granted reserved spaces in the parking
garage, Landlord agrees that the Tenant’s non-reserved spaces shall be located
within the parking garage at least as favorably for parking and access to the
entrance areas of the Building as such reserved spaces on a proportionate basis
(i.e. if another tenant receives 10 reserved spaces in a more favorable
location out of an allotment of 50 spaces, Tenant will be provided with an
equally favorable location for unreserved spaces in a similar proportion);
provided, however, that the provisions of this sentence shall not apply to (i) parking
for the residential parking areas serving the property known as 157 6th Street,
(ii) up to five reserved parking spaces for the benefit of other tenants
in the Building, (iii) any spaces required to be used for dedicated
purposes pursuant to the terms of the PTDM Agreement (such as zip car spaces or
car pooling spaces), and (iv) handicapped spaces or other spaces required
by law. Tenant shall pay for such parking passes to such spaces (whether or not
so used) at Landlord’s then current prevailing monthly rate for parking spaces.
The prevailing monthly rate for parking spaces shall be subject to change from
time to time, provided that any such increases are commercially reasonable as
determined by the market rate for comparable parking spaces in the Kendall
Square area of the City of Cambridge. Such payments shall constitute Additional
Rent for purposes of the Lease. Payments under this Section shall be made
at the places and times and subject to the conditions specified for payments of
Base Rent, or at such other places and times as Landlord shall specify in
writing. To the extent applicable to Tenant’s use of the parking spaces, the
provisions of the Lease shall apply, including the Rules and Regulations.
Without limiting Landlord’s other remedies under the Lease, if Tenant shall
fail to pay the amounts due for such parking spaces for more than ten (10) days
after notice of such failure, then Landlord may terminate Tenant’s rights to such
spaces immediately upon notice by Landlord.


 


16

















 


Tenant shall have the right from time to time to
increase the number of parking passes set forth in Section 1.15, up to an
aggregate number of parking passes not to exceed 78 (which amount includes the
passes initially issued to Tenant hereunder), by written request to Landlord
given at least 60 days in advance and subject to availability, as determined by
Landlord in its sole discretion. Any such passes shall be provided to Tenant
for use on all of the terms and conditions applicable to the passes originally
leased to Tenant hereunder.


 


Tenant’s
rights under this Section 2.01(d) shall not be assigned or
sublicensed except in connection with an assignment or sublease permitted or
for which consent is not required under Article 13 (or is permitted under
Tenant’s lease for premises at 320 Bent Street, if any).


 


Tenant,
at its sole cost and expense, shall comply with the applicable terms and
conditions set forth in that certain PTDM Ordinance — Final Decision, issued on
June 30, 2000, by the City of Cambridge, as amended (the “PTDM Agreement”) which PTDM
Agreement has previously been provided to Tenant. Furthermore, Tenant shall
reasonably cooperate with Landlord as reasonably required for Landlord to
fulfill its obligations under the PTDM Agreement. Landlord shall comply with
the terms of the PTDM Agreement, provided that Landlord shall not be deemed by
this sentence to be responsible for any tenant’s (or any other Building
occupant’s) compliance with the PTDM Agreement.


 


(e)           Measurement of the Premises.


 


(i)            The total rentable
area of the Premises, upon completion of the Base Building Work, is based on
the Construction Documents listed on Exhibit 10.03(a) (the “Base
Building Construction Plans”). The parties agree that, except as set
forth in this Section 2.01(e), the rentable area figures set forth in this
Lease are conclusive unless the Base Building Work, as constructed, does not
substantially conform to the Base Building Construction Plans (as they may be
amended pursuant to this Lease). In the event that the Base Building Work, as
constructed, does not substantially conform to the Base Building Construction
Plans, Landlord’s architect shall calculate the amount by which the rentable
area of the Premises and the Building have changed in accordance with the
Measurement Standard and certify the final rentable square footage to Landlord
and Tenant. Such certification shall include data and calculations supporting
how such measurement was arrived at (which may include as-built plans and
specs) so that Tenant can have such measurement checked by its architect should
it choose to do so. Tenant shall have the right to review such certification
and other listed materials and, if Tenant elects to dispute the same, shall
notify Landlord of any dispute within fifteen (15) business days of Tenant’s
receipt of such certificate. Any such dispute shall be resolved in accordance
with Section 19.03. If the rentable areas change on account of the
provisions of this Section, Landlord and Tenant shall then enter into an
amendment to this Lease confirming the rentable areas, as modified, as well as
proportional changes in the Base Rent, Tenant’s Pro Rata Share and any other
charges or rights under this Lease that are calculated based upon square
footage shall be adjusted based upon the rentable square footage in question.


 


17














 


(ii)           In addition, prior
to the commencement of construction of the Finish Work in each
Phase, but following Tenant’s
completion of Construction Documents for the Finish Work in the First Floor
Space and each successive Phase, Landlord’s architect shall remeasure the
rentable area of the applicable Phase in accordance with the ANSI/BOMA
Z65.1-1996 method of measurement for useable space in office buildings and
consistent with the method used to determine the initial measurement of the
Premises as set forth on Exhibit 2.01(e) attached (collectively, the “Measurement Standard”) and certify
the final rentable square footage to Landlord and Tenant. Such certification
shall include data and calculations supporting how such measurement was arrived
at so that Tenant can have such measurement checked by its architect should it
choose to do so. Tenant shall have the right to review such certification and
other listed materials and, if Tenant elects to dispute the same, shall notify
Landlord of such dispute within fifteen (15) business days of Tenant’s receipt
of such certificate. Any such dispute shall be resolved in accordance with Section 19.03.
In no event shall the First Floor Space be less than 10,000 rentable square
feet, the Office Space be more than 20,000 rentable square feet, or the
aggregate rentable square feet of the Premises be less than 112,516 rentable
square feet on account of the re-measurements described in this paragraph.
Following such remeasurement, Landlord shall prepare and Tenant shall enter into
an amendment to this Lease memorializing any change in the rentable square
footage of any Phase on account of such remeasurement and adjusting the Base
Rent, Letter of Credit increase, Finish Work Allowance, and Additional
Allowance (if applicable) for the applicable Phase.


 


ARTICLE 3. LEASE TERM


 


3.01.      Lease
Term; Delay in Commencement


 


The
Initial Term of this Lease is set forth in Article 1. Landlord shall use
reasonable efforts to Substantially Complete the Base Building Work and deliver
the Premises to Tenant on or before Estimated Delivery Date. The “Delivery Date”
shall mean the date upon which Substantial Completion (as defined in Section 10.03(a))
of the Base Building Work occurs. Promptly after the Delivery Date, Landlord
and Tenant shall execute and deliver a Confirmation of Premises Delivery in the
form of Exhibit 3.01, but Rent shall commence on the applicable Rent
Commencement Date whether or not such confirmation is executed. Landlord’s
failure to deliver the Premises to Tenant on or before the Estimated Delivery
Date, for any reason, shall not give rise to any liability of Landlord
hereunder, shall not constitute a Landlord’s default, shall not affect the
validity of this Lease, and shall have no effect on the beginning or end of the
Term as otherwise determined hereunder or on Tenant’s obligations associated
therewith.


 


Notwithstanding
anything to the contrary herein including any force majeure matters described
in Section 17.09 and any provisions of any non-disturbance agreements with
any mortgagees or ground lessors, if the Delivery Date has not occurred by July 31,
2008 (the “Outside Delivery Date”),
then, as Tenant’s sole remedy at law or equity, Tenant shall have the right to
terminate this Lease upon thirty (30) days’ prior written notice to Landlord (“Tenant’s Termination Notice”),
provided, however, that if the Delivery Date


 


18

















 


occurs
prior to the expiration of such 30 day period, then Tenant’s Termination Notice
shall be void and of no further force and effect and the terms of this Lease
shall continue as set forth herein.


 


3.02.      
Hold Over


 


If
Tenant (or anyone claiming through Tenant) shall remain in occupancy of the
Premises or any part thereof after the expiration or early termination of the
Term without a written agreement therefor executed and delivered by Landlord,
then without limiting Landlord’s other rights and remedies the person remaining
in possession shall be deemed a tenant at sufferance, and Tenant shall
thereafter pay monthly rent (pro rated for such portion of any partial month as
Tenant shall remain in possession) at a rate equal to the higher of 200% of (x) the
amount payable as Base Rent for the last monthly period immediately preceding
such expiration or termination or (y) fair market rent, in each case with
all Additional Rent also payable as provided in this Lease. After Landlord’s
acceptance of the full amount of such rent for the first month of such holding
over, the person remaining in possession shall be deemed a tenant at will at
such rent and otherwise subject to all of the provisions of this Lease.
Notwithstanding the foregoing, if Landlord desires to regain possession of the
Premises promptly after the termination or expiration hereof and prior to
acceptance of rent for any period thereafter, Landlord may, at its option,
forthwith re-enter and take possession of the Premises or any part thereof by
any legal process in force in the state where the Property is located. In any
case, Tenant shall be liable to Landlord for all damages actually resulting
from any failure by Tenant to vacate the Premises or any portion thereof when
required hereunder; provided, however, that Tenant’s liability for damages
(excluding the holdover Base Rent set forth above) during the first ninety (90)
days after the expiration or earlier termination of the Lease shall be limited
to Landlord’s actual lost rents and out-of-pocket costs (including, without
limitation, brokerage commissions, reasonable attorneys’ fees, design costs,
advertising costs and any penalties as liquidated damages that Landlord may
incur) due to such holdover’s effect on a bona-fide third party’s agreement to
lease or otherwise occupy the Premises.


 


19

















 


3.03.       Right to Extend.


 


(a)           First Extension
Term. This Lease of all of the Premises may be extended for an additional
five-year period (the “First Extension Term”) by unconditional written
notice from Tenant to Landlord at least twelve (12) (but not more than eighteen
(18)) months before the end of the Initial Term, time being of the essence. If
Tenant does not timely exercise this option, or (a) if on the date of such
notice or at the beginning of the First Extension Term an Event of Default
exists, or (b) Tenant fails to provide Landlord with a replacement or
amended Letter of Credit on or before the beginning of the First Extension Term
with an expiration date that is at least 95 days following the expiration of
the Term, as so extended, then Tenant’s right to extend shall irrevocably
lapse, Tenant shall have no further right to extend, and this Lease shall
expire at the end of the Initial Term.


 


(b)         Second Extension
Term. The Lease of all the Premises may be extended for a second five-year
period (the “Second Extension Term”) by unconditional written notice
from Tenant to Landlord at least twelve (12) (but not more than eighteen (18))
months before the end of the First Extension Term (if any). If Tenant does not
timely exercise this option, or (a) if on the date of such notice or at
the beginning of the Second Extension Term an Event of Default exists, or (b) Tenant
fails to provide Landlord with a replacement or amended Letter of Credit on or
before the beginning of the Second Extension Term with an expiration date that
is at least 95 days following the expiration of the Term, as so extended, then
Tenant’s right to extend shall irrevocably lapse, Tenant shall have no further
right to extend, and this Lease shall expire at the end of the First Extension
Term.


 


All
references to the Term shall mean the Initial Term as it may be extended by the
First Extension Term or the Second Extension Term, if any (each, an “Extension
Term”).  Each Extension Term shall be on all the same terms and
conditions applied to the Initial Term except that the Base Rent for each
Extension Term shall be as set forth below.


 


(c)          Market Rent.
If Tenant gives Landlord timely notice of its intention to extend the
then-current Term of this Lease, as it may have been previously extended, then
within sixty (60) days thereafter, Landlord shall give Tenant written notice of
the then applicable market rent for Tenant’s space, based on similar space in
the Building and rent for similar space in similar buildings in the same
geographic area, taking into account the absence of a tenant improvement
allowance and brokerage commissions to the extent applicable (the “Market
Rent”). Rent for each year of the next Extension Term shall be established
as the higher of (x) one-hundred percent (100%) of the Market Rent or (y) the
then-effective Base Rent adjusted at the commencement of the applicable
Extension Term to reflect any increase in the CPI. In no event shall Market
Rent be lower than the Base Rent most recently paid hereunder as modified by
the Adjustment, as defined below. Within ten (10) Business Days (as
defined below) after Tenant receives such notice, Tenant shall notify Landlord
of its agreement with or objection to Landlord’s determination of the Market
Rent, whereupon the Market Rent shall be determined by


 


20

















 


arbitration
conducted in the manner set forth below. If Tenant does not notify Landlord
within such ten (10) day period of Tenant’s agreement with or objection to
Landlord’s determination of the Market Rent, then the Market Rent for the
applicable Extension Term shall be deemed to be Landlord’s determination of the
Market Rent as set forth in the notice from Landlord described in this
subsection. “Business Days” shall mean any day other than Saturday, Sunday,
and weekdays when the state courts of The Commonwealth of Massachusetts are
closed.


 


(d)           Arbitration of
Market Rent. If Tenant notifies Landlord of Tenant’s objection to Landlord’s
determination of Market Rent under the preceding subsection, such notice shall
also set forth a request for arbitration and Tenant’s appointment of an MAI
appraiser having at least ten (10) years’ experience in the commercial
leasing market in the City of Cambridge, Massachusetts (an “Arbitrator”).
Within five (5) days thereafter, Landlord shall by notice to Tenant
appoint a second Arbitrator. Each Arbitrator shall be advised to determine the
Market Rent for the applicable Extension Term within thirty (30) days after
Landlord’s appointment of the second Arbitrator. On or before the expiration of
such thirty-(30)-day period, the two Arbitrators shall confer to compare their
respective determinations of the Market Rent. If the difference between the
amounts so determined by the two Arbitrators is less than or equal to ten percent
(10%) of the lower of said amounts then the final determination of the Market
Rent shall be equal to the average of said amounts. If such difference between
said amounts is greater than ten percent (10%), then the two arbitrators shall
have ten (10) days thereafter to appoint a third Arbitrator (the “Third
Arbitrator”), who shall be instructed to determine the Market Rent for the
applicable Extension Term within ten (10) days after its appointment by
selecting one of the amounts determined by the other two Arbitrators. Each
party shall bear the cost of the Arbitrator selected by such party. The cost
for the Third Arbitrator, if any, shall be shared equally by Landlord and
Tenant.


 


(e)           CPI Adjustment.
If, at the commencement of the Interim Date or applicable Extension Term, there
is a change in the CPI (or any comparable successor or substitute index
reasonably designated by the Landlord, appropriately adjusted, and approved by
Tenant, such approval not to be unreasonably withheld) reflecting an increase in
the cost of living over and above the cost of living as reflected by the CPI in
effect on the first Rent Commencement Date to occur (or, with respect to the
First Extension Term, the CPI for the month in which the Interim Date occurred,
or with respect to the Second Extension Term, the CPI for the month in which
the First Extension Term commenced) (hereinafter called the “Base Price
Index”), the “Adjustment” of the Base Rent shall be calculated as
follows for the purposes set forth in Section 1.16 and 3.03(c): the Base
Rent shall be multiplied by a fraction, the numerator of which shall be the CPI
for the month in which the Interim Date occurs or the applicable Extension Term
commences, as applicable, and the denominator of which (for each such fraction)
shall be the Base Price Index (provided, however, that in no event shall the
CPI be deemed to increase during such period by an amount in excess of four
percent (4%) per year compounded annually). In the event that Landlord
determines, and Tenant agrees, that the CPI ceases to use the 1982-84 average
of 100 as the basis of calculation, or if a substantial change is made in the
terms or number of


 


21

















 


items
contained in the CPI, then the CPI shall be adjusted to the figure that the
parties agree in good faith would have been arrived at had the manner of
computing the CPI in effect at the date of this Lease not been changed. In the
event that within one (1) year following the date that the CPI figure for
any month used in calculating the Adjustment shall have been published, the
federal government shall revise such figure, then: (x) such revised CPI
figure shall thereafter be deemed to be the correct CPI figure for all purposes
(unless the federal government shall yet again revise such figure, in which
case the most recently revised CPI figure shall be deemed to be correct); and (y) any
retroactive adjustment or recomputation resulting from such revised CPI figure
shall be limited to encompass only the year immediately preceding the date upon
which the revision of such CPI figure shall have first been published.


 


ARTICLE 4. RENT


 


4.01.      Base Rent


 


On
the initial Rent Commencement Date and thereafter on the first day of each
month during the Term, Tenant shall pay Landlord the monthly installment of
Base Rent for that month in advance and the monthly installment of Tenant’s Pro
Rata Share of Total Operating Costs required by Section 4.02, without
offset, deduction or prior demand. Rent shall be payable at Landlord’s address
or otherwise as Landlord may designate in writing from time to time.


 


4.02.       Additional
Rent


 


(a)           General. “Additional
Rent” means all amounts payable by Tenant under this Lease other than Base
Rent. “Rent” means Base Rent and Additional Rent. Landlord shall
estimate in advance (i) all Taxes under Article 5, (ii) all
utility costs (unless separately metered to or separately contracted for by
Tenant) under Article 6, (iii) all insurance premiums to be paid by
Landlord under Article 7, and (iv) all Operating Expenses under Section 8.01
(individually all such items in clauses (i) through (iv) being “Operating
Costs” and collectively, “Total Operating Costs”) and, commencing on
the initial Rent Commencement Date Tenant shall pay one-twelfth of Tenant’s Pro
Rata Share of such estimated Total Operating Costs monthly in advance together
with Base Rent. Landlord may adjust its estimates of Total Operating Costs at
any time based upon its experience and reasonable anticipation of costs. Such
adjustments shall be effective as of the next Rent payment date after at least
15 days after written notice to Tenant. Within one hundred twenty (120) days
after the end of each fiscal year of the Property during the Term (but in no
event later than 365 days after the end of each fiscal year of the Property
during the Term), Landlord shall endeavor to give to Tenant a reasonably
detailed statement of the Total Operating Costs paid or incurred by Landlord
during the preceding fiscal year and Tenant’s Pro Rata Share of such expenses.
Within the next thirty (30) days, Tenant shall pay Landlord any underpayment,
or Landlord shall credit Tenant with any overpayment, of Tenant’s Pro Rata
Share of such Total Operating Costs or if the Term has ended Landlord


 


22

















 


shall
pay any overpayment to Tenant. If the Term expires or the Lease is terminated
as of a date other than the last day of a fiscal year, Tenant’s payment of
Additional Rent pursuant to this Section for such partial fiscal year
shall be based on Landlord’s best estimate of the items otherwise includable in
Total Operating Costs and shall be made on or before the later of (a) ten (10) days
after Landlord delivers such estimate to Tenant or (b) the last day of the
Term, with an appropriate payment or refund to be made upon Tenant’s receipt of
Landlord’s statement of Total Operating Costs for such fiscal year. This Section shall
survive expiration or earlier termination of the Term.


 


This
Lease requires Tenant to pay directly to suppliers, vendors, carriers,
contractors, etc., certain insurance premiums, utility costs, personal property
taxes, maintenance and repair costs and other expenses. If Landlord pays any of
these amounts in accordance with this Lease following an Event of Default,
Tenant shall reimburse such costs in full upon demand with the next monthly
Rent payment. Unless this Lease provides otherwise, Tenant shall pay all
Additional Rent then due on or before the date for the next monthly Rent
payment. In no event shall Landlord’s failure to demand payment of Additional
Rent be deemed a waiver of Landlord’s right to such payment.


 


(b)           Allocation
of Certain Operating Costs. If at any time during the
Term, Landlord provides services only with respect to particular portions of
the Building or incurs other Operating Costs allocable to particular portions
of the Building, then such Operating Costs shall be charged entirely to those
tenants, including Tenant, if applicable, of such portions, notwithstanding the
provisions hereof referring to Tenant’s Pro Rata Share. If, during any period
for which Landlord’s Operating Costs are being computed, less than all of the
Building is occupied by tenants, or if Landlord is not supplying all tenants
with the services being supplied hereunder, Operating Costs that vary with
occupancy may be reasonably estimated and extrapolated by Landlord to determine
the Operating Costs that would have been incurred if the Building were fully
occupied for such year and such services were being supplied to all tenants,
and such estimated and extrapolated amount shall be deemed to be the Operating
Costs for such period.


 


(c)           Tenant’s
Pro Rata Share. The rentable square footage of the Building set
forth in Section 1, the size of the Premises and the Tenant’s Pro Rata
Share set forth in Section 1.08 may be revised from time to time upon
written notice to Tenant to reflect changes to the Building made by Landlord
pursuant to the terms and conditions of this Lease provided that any
re-measurement resulting from such changes is made pursuant to Section 2.01(e) and
Tenant shall have the right to challenge such re-measurement as provided in
such section. Tenant’s Pro Rata Share is determined by dividing the rentable
square footage of the Premises by the rentable square footage of 95% of the
Building, each as set forth in Article I hereof (and subject to adjustment
as set forth herein).


 


4.03.       Late Charge


 


Tenant
acknowledges that if it pays Rent late, Landlord shall incur unanticipated
costs, which shall be extremely difficult to ascertain exactly. Such costs
include


 


23

















 


processing
and accounting charges, and late charges which may be imposed on Landlord by
any mortgage on the Property. Accordingly, if Landlord does not receive any
Rent payment within five (5) days following its due date, Tenant shall pay
Landlord a late charge equal to five (5%) percent of the overdue amount. The
parties agree that this late charge represents a fair and reasonable estimate
of the costs Landlord shall incur by reason of Tenant’s payment default.
Payment of the late charge shall not cure Tenant’s payment default or prevent
Landlord from exercising other rights and remedies. No late charges under this Section 4.03
shall accrue until Landlord provides notice of such late payment to Tenant and
five (5) days elapse from such notice without Tenant having made such
payment; provided, however, that Landlord shall not be required to give such
notice more than one time in any 12-month period.


 


4.04.      Interest


 


Any late Rent (other than late charges pursuant to Section 4.03)
shall bear interest from the date due until paid at the annual rate equal to at
the rate of 15% per annum (the “Default
Rate”) except to the extent such interest would cause the total
interest to be in excess of that legally permitted. Payment of interest shall
not cure Tenant’s payment default or prevent Landlord from exercising other
rights and remedies. No late interest under this Section 4.04 shall accrue
(i) on Rent, other than Base Rent, Additional Finish Work Amounts, and
Tenant’s Pro-Rata Share of Operating Costs, until Tenant has received notice of
such late payment, or (ii) until Landlord provides notice of any late
payment of Base Rent, Additional Finish Work Amounts, and Tenant’s Pro-Rata
Share of Operating Costs to Tenant and five (5) days elapse from such
notice without Tenant having made such payment; provided, however, that
Landlord shall not be required to give such notice more than one time in any
12-month period.


 


4.05.     Method
of Payment


 


Tenant shall pay the Base Rent to Landlord in
advance in equal monthly installments by the first of each calendar month
during the Term following the initial Rent Commencement Date. Tenant shall make
a ratable payment of Base Rent and Additional Rent for any period of less than
a month at the beginning or end of the Term. All payments of Base Rent,
Additional Rent and other sums due shall be paid in current U.S. exchange by
check drawn on a clearinghouse bank at the Original Address of Landlord or such
other place as Landlord may from time to time direct (or following request by
Landlord, by electronic fund transfer), without demand, set-off or other
deduction, except as otherwise expressly set forth herein.


 


Without
limiting the foregoing, Tenant’s obligation so to pay Rent shall be absolute,
unconditional, and independent and shall not be discharged or otherwise
affected by any law or regulation now or hereafter applicable to the Premises,
or any other restriction on Tenant’s use, or, except as expressly provided in
herein, any casualty or taking, or any failure by Landlord to perform or other
occurrence; and Tenant waives all rights now or hereafter existing to quit or
surrender this Lease or the Premises or any part


 


24

















 


thereof,
or to assert any defense in the nature of constructive eviction to any action
seeking to recover Rent. Subject to the provisions of this Lease, however,
Tenant shall have the right to seek judgments for direct money damages
occasioned by Landlord’s breach of its Lease covenants (but may not set-off any
such judgment against any Rent or other amount owing hereunder).
Notwithstanding anything in this paragraph to the contrary, Tenant shall have
the right to terminate this Lease on the express conditions and terms contained
in Sections 3.01 (second paragraph), 12.01, 12.02, and 6.01 (third paragraph)
hereof.


 


It
is intended that Base Rent payable hereunder shall be a net return to Landlord
throughout the Term, free of expense, charge, offset, diminution or other
deduction whatsoever (except as expressly provided herein) on account of the
Premises (excepting Landlord’s financing expenses, federal and state income
taxes of general application, and those expenses that this Lease expressly
makes the responsibility of Landlord), and all provisions hereof shall be
construed in terms of such intent.


 


4.06.        Audit


 


Landlord
shall keep books and records regarding Total Operating Costs. All records shall
be retained for at least three (3) years. At the request of Tenant (“Tenant’s
Audit Notice”) given within one hundred eighty (180) days after Landlord
delivers Landlord’s statement of Total Operating Costs, Tenant (at Tenant’s
expense unless, as provided below such audit reveals Tenant having been
overcharged by more than 5%, in which case at Landlord’s expense) shall have
the right to examine Landlord’s books and records applicable to Total Operating
Costs for such fiscal year. Such right to examine the records shall be
exercisable: (i) upon reasonable advance notice to Landlord and at
reasonable times during Landlord’s business hours and (ii) only during the
120-day period (the “Audit Period”) following Tenant’s Audit Notice. In
the event an audit of Landlord’s Total Operating Costs for such year, conducted
by an independent certified public accountant retained by Tenant or an auditing
firm approved by Landlord for such purpose, indicates that certain items were
improperly included in Landlord’s Total Operating Costs and resulted in an
overcharge to Tenant and Landlord disputes the results of said audit, then
Tenant may request that the amount of Additional Rent for Total Operating Costs
for the year in question be determined by an audit conducted by a certified
public accountant not the auditor for either Landlord or Tenant and reasonably
selected by both parties, provided that if the parties are unable so to agree
within ten (10) days after receipt of Tenant’s notice, then within twenty
(20) days after Tenant’s notice is given, Tenant may submit the dispute for
determination by an arbitration conducted by the Boston Office of the American
Arbitration Association (“AAA”) in accordance with the AAA’s commercial
real estate arbitration rules. The arbitrator shall be selected by the AAA and
shall be a certified public accountant with at least ten (10) years of
experience in auditing commercial office buildings in the metropolitan Boston
area. If the Additional Rent due as finally determined for such fiscal year is
less than the Additional Rent paid by Tenant, Landlord shall either, at Tenant’s
option, refund to Tenant the difference in one lump sum within 30 days after
Tenant’s request or credit same against Rent next due from Tenant. Tenant’s
auditing firm shall be subject to the prior approval of Landlord, which
approval


 


25

















 


may
be granted or denied in Landlord’s reasonable discretion, and shall not be
compensated on a contingent fee basis. Any of the following accounting firms
shall be deemed acceptable to Landlord if not compensated on a contingent fee
basis: Ernst & Young, LLP; PriceWaterhouseCoopers, LLP; KPMG, LLP; and
Deloitte & Touche USA, LLP. Notwithstanding the foregoing, Tenant’s
request to audit Landlord’s books and records shall not extend the time within
which Tenant is obligated to pay the amounts shown on Landlord’s statement of
Total Operating Costs, and Tenant may not make the request to audit Landlord’s
books and records at any time Tenant is in default of such payments or
otherwise in default beyond applicable notice and cure periods under the Lease.
In the event the audit determines that Tenant has been overcharged by 5% or
more of the Additional Rent due with respect to Total Operating Costs, Landlord
shall pay for the cost of said audit and/or the arbitration. In all other
cases, Tenant shall pay for the cost of said audit and/or the arbitration.


 


As
a condition precedent to performing any such examination of Landlord’s books
and records, Tenant and its examiners shall be required to execute and deliver
to Landlord an agreement in form reasonably acceptable to Landlord agreeing to
keep confidential any information that they discover about Landlord or the
Building or the Property in connection with such examination other than
disclosures (i) required by applicable law and (ii) in connection
with any enforcement of the terms of this Lease in any legal or arbitration
proceeding. Without limiting the foregoing, such examiners shall also be
required to agree that they will not represent any other tenant in the Building
or the Property in connection with examinations of Landlord’s books and records
for the Building unless said tenant(s) have retained said examiners prior
to the date of the first examination of Landlord’s books and records conducted
by Tenant pursuant to this Section 4.06. Notwithstanding any prior
approval of any examiners by Landlord, Landlord shall have the right to rescind
such approval at any time if in Landlord’s reasonable judgment the examiners
have breached any confidentiality undertaking to Landlord or cannot provide
reasonably acceptable assurances and procedures to maintain confidentiality.


 


ARTICLE 5. TAXES


 


5.01.       Taxes


 


Commencing
on the initial Rent Commencement Date, Tenant covenants and agrees to pay to
Landlord as Additional Rent Tenant’s Pro Rata Share of the Taxes for each
fiscal tax period, or ratable portion thereof, included in the Lease Term. If
Landlord receives a refund of any such Taxes, Landlord shall pay Tenant its Pro
Rata Share of the refund after deducting Landlord’s reasonable costs and
expenses incurred in obtaining the refund (to the extent such costs and
expenses were not previously included in Operating Expenses or Taxes), but in
any event such refund to Tenant shall not exceed amounts paid by Tenant for
Taxes in the period subject to such refund. Upon Tenant’s request, Landlord
shall furnish Tenant with copies of the applicable real estate tax bill. Tenant
shall make estimated payments on account of Taxes in monthly installments on
the first day of each


 


26

















 


month,
in amounts reasonably estimated from time to time by Landlord pursuant to Section 4.02(a).


 


5.02.     Definition
of “Taxes”


 


“Taxes” means all
taxes, assessments, betterments, excises, user fees and all other governmental
charges and fees of any kind or nature, or impositions or agreed payments in
lieu thereof or voluntary payments made in connection with the provision of
governmental services or improvements of benefit to the Building or the
Property and all penalties and interest thereon (but only to the extent and if
due to Tenant’s failure to make timely payments), assessed or imposed against
the Premises or the Property (including without limitation any personal
property taxes levied on the Property or on fixtures or equipment used in
connection therewith), other than a federal or state income tax of general
application. The following shall be excluded from Taxes and shall be paid
solely by Landlord: inheritance, estate, succession, transfer, gift, franchise,
or capital stock tax, or any income taxes arising out of or related to
ownership and operation of income-producing real estate, or any excise taxes
imposed upon Landlord based upon gross or net rentals or other income received
by it, and assessments, charges, taxes, rents, fees, rates, levies, excises,
license fees, permit fees, inspection fees or other authorization fees or
charges to the extent allocable to or caused by the development or installation
of on- or off-site improvements or utilities (including without limitation
street and intersection improvements, roads, rights of way, lighting and
signalization) necessary for the initial development or construction of the
Building (other than increases in Taxes due solely to changes in the assessed
valuation of the Property as a result of such development or construction). If
the Property is not a separate tax parcel, then real estate taxes shall be
allocated between the Property and the balance of the tax parcel in a manner
reasonably determined by Landlord. Furthermore, so long as the apartment
building at 157 Sixth Street and the portion of the Property on which such
building is located are located on the same tax parcel as the Building, the
Taxes allocable to 157 Sixth Street shall be excluded from Taxes based on the
methodology used by the City of Cambridge assessors or, if the City of
Cambridge assessors cease to separately allocate such Taxes, then such Taxes
shall be allocated by Landlord based on the methodology previously used by the
City of Cambridge assessors or some similar reasonably determined and
understandable measurement. If during the Term the present system of ad valorem
taxation of property shall be changed so that, in lieu of or in addition to the
whole or any part of such ad valorem tax there shall be assessed, levied or
imposed on such property or Premises or on Landlord any kind or nature of
federal, state, county, municipal or other governmental capital levy, income,
sales, franchise, excise or similar tax, assessment, levy, charge or fee (as
distinct from the federal and state income tax in effect on the Date of Lease)
measured by or based in whole or in part upon Building valuation, mortgage
valuation, rents, services or any other incidents, benefits or measures of real
property or real property operations, then any and all of such taxes,
assessments, levies, charges and fees shall be included within the term of
Taxes; provided, however, that Tenant’s obligation with respect to such
substitute taxes shall be limited to the amount thereof as computed at the
rates that would be payable if the Building and Property were the only property
of


 


27






 










 


Landlord.
Taxes shall also include reasonable expenses, including reasonable fees of
attorneys, appraisers and other consultants, incurred by Landlord in connection
with any efforts to obtain abatements or reduction or to assure maintenance of
Taxes for any year wholly or partially included in the Term, whether or not
successful and whether or not such efforts involved filing of actual abatement
applications or initiation of formal proceedings.


 


At
such time, if any, as the Premises comprises at least fifty percent (50%) of
rentable area located on the tax lot that includes the Property, Landlord
shall, upon the written request of Tenant, commence a proceeding for abatement
of Taxes, provided Landlord shall thereafter have the right to settle such
proceeding for the benefit of tenants in its reasonable discretion.


 


5.03.       Personal
Property Taxes


 


Tenant
shall pay directly all taxes charged against Tenant’s trade fixtures,
furnishings, equipment, inventory, or other personal property. Tenant shall use
its best efforts to have personal property taxed separately from the Property.
Landlord shall notify Tenant if any of Tenant’s personal property is taxed with
the Property, and Tenant shall pay such taxes to Landlord within thirty (30)
days of such notice.


 


ARTICLE 6. UTILITIES


 


6.01.       Utilities


 


Tenant
shall pay all charges for water, sewer, gas and electricity (“Utility
Service”) and any other utilities or like services used or consumed on the
Premises, whether called use charge, tax, assessment, fee or otherwise as the
same become due. It is understood and agreed that Landlord shall be responsible
for bringing Utility Service and telecommunications service to a common
switching point(s) at the Building as shown on Exhibit 6.01
attached hereto (collectively, the “Utility Switching Points”). As part
of the Finish Work, Tenant shall install direct meters for all Utility Services
serving the Premises (other than gas, electricity, and water, which shall be or
sub- or “check” metered at Landlord’s cost as part of the Base Building Work or
otherwise in coordination with the completion of the Finish Work) for measuring
Tenant’s consumption of such Utility Services. Tenant shall pay all costs and
expenses associated with any separately metered utilities (such as telephone) provided
exclusively to the Premises directly to the applicable service provider. Tenant
shall pay all costs and expenses associated with utility charges that are based
on a check- or sub-metering metering installation based on Landlord’s reading
of such meters and directly to Landlord at the same rate paid by Landlord to
the provider thereof. Additional Rent for such utilities may be reasonably
estimated monthly by Landlord, based on actual readings of sub- and “check”
meters where applicable, and shall be paid monthly by Tenant within thirty (30)
days after being billed with a final accounting based upon actual bills
received from the utility providers following the conclusion of each fiscal
year of the Building. Tenant shall pay for any and all costs to


 


28

















 


install
and connect Utility Services from the Utility Switching Points to the Premises.
Landlord shall be under no obligation as to any Utility Services beyond the
foregoing responsibility to bring such Utility Services to the Utility
Switching Points and as required in the completion of the Base Building Work
and Landlord shall not be liable for any interruption or failure in the supply
of any utilities or Utility Services, except to the extent expressly set forth
below.


 


To
the extent permitted by law, Landlord shall have the right at any time and from
time to time during the Term to contract for or purchase one or more Utility
Services from any company or third party providing Utility Services (“Utility Service Provider”). Provided
there shall be no unreasonable interference with Tenant’s operations within the
Premises, Tenant agrees reasonably to cooperate with Landlord and the Utility
Service Providers and at all times as reasonably necessary, and on reasonable
advance notice, shall allow Landlord and the Utility Service Providers
reasonable access (provided such access is so scheduled and so exercised so as
to minimize any disruption to Tenant) to any utility lines, equipment, feeders,
risers, fixtures, wiring and any other such machinery or personal property
within the Premises and associated with the delivery of Utility Services.


 


In
the event that there shall be an interruption, curtailment or suspension of the
elevator, electricity, HVAC service, or water supply in the manner required to
be provided by Landlord in this Lease or an interruption, curtailment or
suspension of access to the Premises (which event is not subject to Article 12
and no reasonably equivalent alternative service or supply is provided by
Landlord) that shall prevents Tenant from using, and Tenant does not actually
so use, all or a portion of the Premises (a “Service
Interruption”), and if (a) such Service Interruption shall
continue for at least five (5) consecutive Business Days following receipt
by Landlord of written notice from Tenant describing such Service Interruption
(the “Service Interruption Notice”),
and (b) such Service Interruption shall not have been caused, in whole or
in part, by an act or omission in violation of this Lease by Tenant or
negligence of Tenant, or of Tenant’s agents, servants, employees, contractors
or visitors (a Service Interruption that satisfies both of the foregoing
conditions being referred to hereinafter as a “Material
Service Interruption”), then Tenant shall be entitled (x) to an
equitable abatement of Base Rent and Tenant’s Pro Rata Share of Total Operating
Costs, based on the nature and duration of the Material Service Interruption,
the area of the Premises affected, and the then current Rent amounts, for the
period that shall begin on the commencement of such Material Service
Interruption and that shall end on the day such Material Service Interruption
shall cease, and (y) if such Material Service Interruption shall continue
for at least six (6) months following Landlord’s receipt of the Service
Interruption Notice, to terminate this Lease upon 30 days’ prior written notice
to Landlord (provide that such notice shall be null and void, and of no force
and effect, if such Material Service Interruption ceases within such 30 day
period).


 


29

















 


ARTICLE 7. INSURANCE


 


7.01.     Coverage


 


Tenant
shall maintain during the Term insurance for the benefit of Tenant and Landlord
(as their interests may appear) from insurers rated at least A-/X by A. M.
Best, with terms and coverages reasonably satisfactory to Landlord and with
such increases in limits as (a) Landlord may from time to time reasonably
request consistent with requirements at other similar properties in the Kendall
Square, Cambridge, Massachusetts area, or (b) as required under the Ground
Lease provided, however, that Landlord shall not agree to an amendment of the
Ground Lease increasing such requirements unless the conditions set forth in (a) have
been satisfied. Initially, Tenant shall maintain the following:


 


(a)               Commercial
general liability insurance naming Landlord, Ground Landlord, Landlord’s
management agents and Landlord’s mortgagee(s) from time to time as
additional insureds, with coverage for premises/operations, personal injury,
and contractual liability with combined single limits of liability of not less
than $5,000,000 for bodily injury and property damage per occurrence.


 


(b)              Property
insurance covering property damage and business interruption. Covered property
shall include all Tenant Work other than Finish Work after it is substantially
complete in the Premises, office furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant’s property on the Property. Such
insurance shall cover special perils including theft and such other risks
Landlord may from time to time reasonably designate if such risks are required
by landlords to be insured by tenants of similar properties under similar
circumstances, for the full replacement cost value of the covered items and in
amounts that meet any co-insurance clause of the policies of insurance, with a
deductible amount not to exceed $50,000. The same property policy shall also
insure Tenant’s business income and extra expense arising out of Tenant’s
operations at the Premises. Tenant shall obtain and pay for builder’s risk
insurance on all Finish Work during its installation until it is substantially
complete.


 


(c)             Workers’
compensation insurance with statutory benefits and employers’ liability
insurance in the following amounts: each accident, $500,000; disease (policy
limit), $500,000; disease (each employee), $500,000.


 


Prior
to the Delivery Date or, if earlier, the date that Tenant first enters the
Premises to commence construction of the Finish Work, and on each anniversary
of that date (or on the policy renewal date), Tenant shall give Landlord
certificate(s) evidencing such coverage and stating that it may not be
changed or canceled without at least thirty (30) days’ prior written notice to
Landlord and Tenant. Insurance maintained by Tenant shall be deemed to be
primary insurance, and any insurance maintained by Landlord shall be deemed
secondary to it.


 


30

















 


7.02.     Avoid Action Increasing Rates


 


Tenant
shall comply with Sections 9.01, 9.02, 9.03, and 9.04 and in addition shall
not, directly or indirectly, use the Premises in any way that is prohibited by
law or that may jeopardize any insurance coverage. Tenant shall cure any breach
of this Section 7.02 within ten (10) days after notice from Landlord
by stopping any use that is prohibited by law or jeopardizes any insurance
coverage. Upon demand, Tenant shall have no further notice or cure right under Article 14
for any such breach. Tenant shall reimburse Landlord for all of Landlord’s
costs incurred in providing any insurance to the extent attributable to any
special endorsement or increase in premium resulting from the particular
business or operations of Tenant, and any special or extraordinary risks or
hazards resulting therefrom, including without limitation, any risks or hazards
associated with the generation, storage and disposal of so-called biohazards or
medical waste. Notwithstanding the foregoing, Tenant’s use of the Premises for
the Permitted Uses, generally (as opposed to Tenant’s particular use) in
compliance with the terms and conditions of this Lease shall not be deemed
legally prohibited or dangerous to people or property or jeopardizing any
insurance coverage for the purposes of this Section 7.02.


 


7.03.      Waiver
of Subrogation


 


Landlord
and Tenant each waive any and every claim for recovery from the other for any
and all loss of or damage to the Property or any part of it, or to any of its
contents, to the extent such loss or damage is covered by property insurance or
would have been covered by property insurance required hereunder. Landlord
waives any and every such claim against Tenant that would have been covered had
the insurance policies required to be maintained by Landlord by this Lease been
in force, to the extent that such loss or damage would have been recoverable
under such policies. Tenant waives any and every such claim against Landlord
that would have been covered had the insurance policies required to be
maintained by Tenant under this Lease been in force, to the extent that such
loss or damage would have been recoverable under such policies. This mutual
waiver precludes the assignment of any such claim by subrogation (or otherwise)
to an insurance company (or any other person), and Landlord and Tenant each
agree to give written notice of this waiver to each insurance company that has
issued or shall issue any property insurance policy to it, and to have the
policy properly endorsed, if necessary, to prevent invalidation of the
insurance coverage because of this waiver.


 


7.04.       Landlord’s
Insurance


 


Landlord
shall purchase and maintain during the Term with insurance companies rated at
least A-/X by A.M. Best the following: (i) commercial general liability
insurance for incidents occurring in the common areas, with coverage for
premises/operations, personal and advertising injury, products/completed
operations and contractual liability with combined single limits of liability
of not less than $10,000,000 for bodily injury and property damage per
occurrence; and (ii) property insurance covering property damage to the
Building (including Finish Work to the extent that Tenant has provided Landlord
with


 


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any
information reasonably required by Landlord to insure the Finish Work once each
phase of the Finish Work is substantially completed (which shall be assumed to
have occurred unless Landlord advises Tenant to the contrary in writing
indicating what specific information it needs to obtain such insurance), but
otherwise excluding Tenant Work and any tenant improvements elsewhere in the
Building), and loss of rental income, covering special perils including theft
for full replacement cost value of the Building, with co-insurance waived by
inclusion of an agreed amount endorsement together with such other coverages
and risks as Landlord shall reasonably decide or a mortgagee or ground lessor
may require. As set forth in Section 4.02(a), Tenant’s Pro Rata Share of
the cost thereof shall be borne by Tenant.


 


ARTICLE 8. OPERATING EXPENSES


 


8.01.       Operating
Expenses


 


“Operating Expenses” shall mean all costs and
expenses associated with the operation, maintenance and repair of the Property
and (to the extent benefiting the Property) the Project, as defined below, and
of all heating, ventilating and air conditioning, plumbing, electrical, utility
and safety systems for the Building. Operating Expenses include without
limitation: compliance with Landlord’s obligations under Section 10.03(b);
planting and landscaping; snow removal; utility, water and sewage services;
maintenance of signs (other than tenants’ signs); supplies, materials and
equipment purchased or rented, total wage and salary costs paid to, and all
contract payments made on account of, all persons engaged in the operation,
maintenance, security, cleaning and repair of the Property, including Social
Security, old age and unemployment taxes and so-called “fringe benefits”
prorated to the extent engaged in such services to or for the Building;
services furnished to tenants of the Property; maintenance, repair and
replacement of Building equipment and components; utilities consumed and
expenses incurred in the operation, maintenance and repair of the Property including,
without limitation, oil, gas, electricity (other than electricity to tenants in
their demised premises if Tenant is directly responsible for payment under this
Lease on account of electricity consumed by Tenant); costs incurred by Landlord
to comply with the terms and conditions of any governmental approvals affecting
operations of the Property (but not relating to conditions or obligations
imposed with respect to permits and approvals necessary to construct the
Building, other than with respect to the PTDM Agreement); the PTDM Agreement;
workers’ compensation insurance and property, liability and other insurance
premiums; personal property taxes; rental or lease payments paid by Landlord
for rented or leased personal property used in the operation or maintenance of
the Property; fees for required licenses and permits; routine maintenance and
repair of parking areas and paving (including sweeping, striping, repairing,
resurfacing, and repaving); refuse removal; security; and property management
fees. Landlord may use third parties or affiliates to perform any of these
services provided any affiliate provided services are at no more than market
rates and terms, and the cost thereof shall be included in Operating Expenses.
As long as such properties are in common ownership and/or are jointly operated,
Landlord shall reasonably allocate, based on total rentable square footage or
some similar reasonably determined and


 


32

















 


understandable
measurement, the cost of any Operating Expenses incurred jointly for the
Property and any other property, including without limitation 320 Bent Street
and that certain property known as 157 Sixth Street, Cambridge, Massachusetts
(which properties, together with the Property, are collectively referred to
herein as the “Project”). In addition,
if Landlord from time to time repairs or replaces any existing improvements or
equipment or installs any new improvements or equipment to the Building
(including without limitation energy conservation improvements or other
improvements), then the cost of such items that are treated as capital expenses
pursuant to generally accepted accounting principles (to the extent not
excluded below) shall be amortized over their reasonable life, together with an
actual or imputed interest rate (at the level then being charged by
institutional first mortgagees for new permanent first mortgage loans on
buildings in the area which are similar to the Building) and the applicable
portion included in Operating Expenses.


 


Operating
Expenses shall not include: the cost of repairs or other work incurred by
reason of fire, windstorm or other casualty to the extent Landlord is
reimbursed for such costs by insurance or would have been reimbursed if
Landlord maintained insurance in the manner required by this Lease, except for
reasonable deductibles paid under insurance policies maintained by Landlord;
costs associated with the operation of the business of Landlord and/or the sale
and/or financing of the Building, as distinguished from the cost of Building
operations, maintenance and repair; costs of disputes between Landlord and its
employees, tenants, lenders, ground lessors, or contractors; any ground or
underlying lease rental; bad debt expenses and interest, principal, points and
fees on debts or amortization on any mortgage or other debt instrument
encumbering the Building or the Property; costs of any new improvements or
equipment added to the Building (including without limitation energy
conservation improvements or other improvements) that under generally accepted
accounting principles are properly classified as capital expenditures except to
the extent such items (a) will, in Landlord’s reasonable estimate, result
in a reduction in Operating Expenses (in which case Landlord shall only include
each year in Operating Expenses the amount of Landlord’s reasonable estimate of
such annual reduction in Operating Expenses, but may recover the aggregate of
such anticipated annual savings over the course of 12 months in equal
installments, rather than over the useful life of such capital item) or (b) are
required by changes in law occurring after the Delivery Date; provided,
however, if Landlord leases any items of new capital equipment, then the
rentals and other costs paid pursuant to such leasing shall be included in
Operating Expenses for the expense year in which they were incurred; costs
incurred by Landlord to the extent that Landlord is reimbursed by insurance
proceeds or is otherwise reimbursed by third parties; depreciation, interest
payments, and amortization, except on equipment, materials, tools, supplies and
vendor-type equipment purchased by Landlord to enable Landlord to supply
services Landlord might otherwise contract for with a third party where such
depreciation, amortization and interest payment would otherwise have been
included in the charge for such third party’s services, all as determined in
accordance with generally accepted accounting principles, consistently applied,
and when depreciation or amortization is permitted or required, the item shall
be amortized over its reasonably anticipated useful life; advertising and
promotional expenditures; marketing costs, including leasing


 


33

















 


commissions,
attorneys’ fees (in connection with the negotiation and preparation of letters
of intent, leases, subleases and/or assignments), space planning costs, and
other costs and expenses incurred in connection with lease, sublease and/or
assignment negotiations and transactions with present or prospective tenants or
other occupants of the Project; costs, including permit, license and inspection
costs, incurred with respect to the installation of tenants’ or other occupants’
improvements or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants of the
Building; costs incurred in providing any tenant inducement or benefit to other
tenants of the Building that is not similarly provided to and shared by Tenant;
expenses in connection with services or other benefits that are not offered to
Tenant or for which Tenant is charged for directly; costs incurred by Landlord
due to the violation by Landlord or any tenant of terms and conditions of any
lease of space in the Building; management fees paid or charged by Landlord in
connection with the management of the Building to the extent such management
fee is in excess of the management fee customarily paid or charged by landlords
of comparable buildings in the vicinity of the Building; salaries and other
benefits paid to the employees of Landlord to the extent customarily included
in or covered by a management fee, provided that in no event shall Operating
Expenses include salaries and/or benefits attributable to personnel above the
level of site or building manager; rent for any office space occupied by
Building management personnel to the extent the size of such space exceeds
1,000 rentable square feet or the rental rate for such office space exceeds the
fair market rental value of office space occupied by management personnel of
comparable buildings in the vicinity of the Building; amounts paid to Landlord
or to subsidiaries or affiliates of Landlord for goods and/or services in the
Building to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis; Landlord’s
general corporate overhead and general and administrative expenses; services
provided, taxes attributable to, and costs incurred in connection with the
operation of the parking garage on the Property; costs incurred in connection
with upgrading the Building to comply with laws, rules, regulations and codes
in effect prior to the Delivery Date; all assessments and premiums that are not
specifically charged to Tenant because of what Tenant has done, which can be
paid by Landlord in installments, shall be paid by Landlord and not included as
Operating Expenses except in the year in which the assessment or premium
installment is actually paid; costs arising from defects in the design and/or
construction of the Base Building Work or repair thereof; costs associated with
the operation of the business of the entity which constitutes Landlord as the
same are distinguished from the costs of operation of the Building, including
accounting and legal matters, costs of defending any lawsuits with any
mortgagee (except as the actions of Tenant may be in issue); costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord’s interest
in the Building; costs incurred in connection with any disputes between
Landlord and its employees, between Landlord and Building management, or
between Landlord and other tenants or occupants; or between Landlord and any
ground lessor; costs arising from the gross negligence or willful misconduct of
Landlord or other tenants or occupants of the Building or their respective
agents, employees, licensees, vendors, contractors or providers of materials or
services; costs of acquisition and maintenance of signs in or on the Building
identifying


 


34

















 


tenants
(other than Tenant); costs incurred in connection with the operation of retail
facilities on the Property (except to the extent that such retail tenants are
obligated to pay their pro-rata share of such costs); and costs for sculpture,
paintings, or other objects of art exceeding those costs which are reasonably
and customarily incurred by landlords of similar buildings in the same
geographic area of the Building.


 


Commencing
on the initial Rent Commencement Date, Tenant shall pay Tenant’s Pro Rata Share
of Operating Expenses in accordance with Section 4.02.


 


ARTICLE 9. USE OF PREMISES


 


9.01.       Permitted
Uses


 


Tenant
may use the Premises only for the Permitted Uses described in Section 1.11.
Tenant shall keep the Premises equipped with appropriate safety appliances to
the extent required by applicable laws or insurance requirements directly
relating to Tenant’s use of the Premises as opposed to appropriate safety
appliances required of buildings such as the Building. Tenant shall comply with
Landlord’s rules and regulations (the “Rules and  Regulations”) promulgated from time to
time, provided the same are not inconsistent with or in limitation of the
provisions of this Lease and are reasonable, and Tenant shall use reasonable
efforts to cause its agents, contractors, customers and business invitees to
comply therewith. Landlord’s initial Rules and Regulations are attached
hereto as Exhibit 9.01. Landlord shall not apply the Rules and
Regulations against Tenant in a discriminatory manner.


 


9.02.       Indemnification


 


Following
the Delivery Date, Tenant shall assume exclusive control of all areas of the
Premises, including all improvements, utilities, equipment, and facilities
therein. Tenant is responsible for the Premises and any Tenant’s improvements,
equipment, facilities and installations, wherever located on the Property and
all liabilities, including without limitation tort liabilities incident
thereto; except any liabilities arising out of the gross negligence or willful
misconduct of Landlord. Tenant shall indemnify, save harmless and defend
Landlord, Ground Landlord, and their respective members, managers, officers,
mortgagees, agents, employees, independent contractors, invitees and other
persons acting under them (collectively, “Indemnitees”) from and against
all liability, claim or cost (including reasonable attorneys’ fees) arising in
whole or in part out of (i) any injury, loss, theft or damage (except to
the extent due to the negligence or willful misconduct of the Indemnitees and
their respective agents, contractors or employees) to any person or property
while on or about the Premises; (ii) any condition within the Premises,
except for conditions existing prior to the Delivery Date; (iii) the use
of the Premises or the Property by; or any act or omission of, Tenant or
persons claiming by, through or under Tenant, or any of its agents, employees,
independent contractors, suppliers or invitees, excluding from such
indemnification any gross negligence or willful misconduct of such Indemnitees.


 


35

















 


Subject
in any and all events to Section 7.03 of this Lease and subject to the
limitations of Section 10.02(b) of this Lease, Landlord shall defend,
indemnify and hold Tenant harmless from and against any and all claims,
damages, losses, penalties, costs, expenses and fees (including without
limitation reasonable legal fees) arising in whole or in part out of any injury,
loss, theft or damage (except to the extent due to the negligent acts or
omissions of Tenant, its employees, contractors or agents) to any person or
property while on or about the common areas of the Property to the extent
resulting from the negligent acts or omissions or willful misconduct of
Landlord, its employees, agents or contractors. The provisions of this Section 9.02
shall survive the expiration or earlier termination of this Lease.


 


9.03.     Compliance
With Legal Requirements


 


Tenant
shall not cause or permit the Premises or the Property to be used in any way
that violates any law, code, ordinance, restrictive covenant, encumbrance,
governmental regulation, order, permit, approval or any provision of the Lease
and (to the extent disclosed to Tenant) Ground Lease (each a “Legal
Requirement”), or constitutes a nuisance or waste, provided, however, that
Landlord shall ensure that the construction of the Base Building Work complies
with all Legal Requirements in effect upon the Delivery Date. Tenant shall
obtain and pay for all permits and shall promptly take all actions necessary to
comply with all Legal Requirements, including without limitation the
Occupational Safety and Health Act, applicable to Tenant’s use of the Premises.
Tenant shall maintain in full force and effect all certifications or
permissions required for Tenant’s operations at the Premises. Tenant shall be
solely responsible for procuring and complying at all times with any and all
necessary permits, certifications, permissions and the like and complying with
all reporting requirements directly relating or incident to: the conduct of its
activities on the Premises; its scientific experimentation; transportation,
storage, handling, use and disposal of any chemical or radioactive or bacteriological
or pathological substances or organisms or other hazardous wastes or
environmentally dangerous substances or materials or medical waste. Within
fifteen (15) days of a request by Landlord, which request shall be made not
more than once during each period of twelve (12) consecutive months during the
Term hereof, unless otherwise requested by any mortgagee of Landlord, Tenant
shall furnish Landlord with copies of all such then current permits that Tenant
possesses or has obtained together with a certificate certifying that such
permits are all of the current permits that Tenant possesses or has obtained
with respect to the Premises. Tenant shall promptly give notice to Landlord of
any written warnings or violations relative to the above received from any
federal, state, or municipal agency or by any court of law and shall promptly
cure the conditions causing any such violations in accordance with applicable
Legal Requirements. Tenant shall not be deemed to be in default of its
obligations under the preceding sentence to promptly cure any condition causing
any such violation in the event that, in lieu of such cure, Tenant shall
contest the validity of such violation by appellate or other proceedings
permitted under applicable law, provided that: (i) any such contest is
made reasonably and in good faith, (ii) Tenant makes provisions,
including, without limitation, posting bond(s) or giving other security,
reasonably acceptable to Landlord to protect Landlord, the Building and the
Property from any


 


36

















 


liability,
costs, damages or expenses arising in connection with such violation and
failure to cure, (iii) Tenant shall agree to indemnify, defend (with
counsel reasonably acceptable to Landlord) and hold Landlord harmless from and
against any and all liability, costs, damages, or expenses arising in
connection with such condition and/or violation, (iv) Tenant shall
promptly cure any violation in the event that it exhausts all available appeals
without success, and (v) Tenant shall certify to Landlord’s satisfaction
that Tenant’s decision to delay such cure shall not result in any actual or
threatened bodily injury or property damage to Landlord, any tenant or occupant
of the Building or the Property, or any other person or entity.


 


Notwithstanding
the foregoing or any other provision of this Lease, however, Tenant shall not
be responsible for compliance with any such laws, regulations, or the like (i) requiring
structural repairs or modifications or (ii) repairs or modifications to
the utility or Building service equipment or (iii) installation of new
Building service equipment, such as fire detection or suppression equipment
unless with respect to any of the aforementioned (i), (ii), or (iii), such
repairs, modifications, or installations shall (a) be due to Tenant’s
particular use of the Premises (as opposed to the Permitted Use, generally), (b) be
due to the negligence or willful misconduct of Tenant or any person claiming by
or through Tenant, or any of their agents, employees, or contractors, or (c) be
due to any alterations or additions made to the Premises by Tenant or any
person claiming by or through Tenant from time to time during the Term of the
Lease.


 


Landlord
shall deliver the Premises to Tenant in compliance with all Legal Requirements
applicable to the Premises in effect as of the Delivery Date. Moreover,
Landlord covenants to Tenant that, as of the Delivery Date, the Premises shall
be in compliance with the City of Cambridge zoning laws and state and local
building laws, ordinances and regulations, and that the Permitted Uses shall be
an allowed use at the Premises under the City of Cambridge zoning laws.


 


Landlord
shall be responsible for the compliance of the structural elements, roof floor
slab, and building systems to the Utility Switching Points of the Building, and
the common areas of the Building and the Property, with all Legal Requirements
except to the extent compliance is required due to Tenant’s particular use of
the Premises, as opposed to the Permitted Uses generally.


 


9.04.      Hazardous Substances


 


“Environmental
Law(s)” means all statutes, laws, rules, regulations, codes, ordinances,
standards, guidelines, authorizations and orders of federal, state and local
public authorities pertaining to any of the Hazardous Substances or to
environmental compliance, contamination, cleanup or disclosures of any release
or threat of release to the environment, of any hazardous or toxic substances,
wastes or materials, any pollutants or contaminants which are included under or
regulated by any municipal, county, state or federal statutes, laws, rules,
regulations, codes, ordinances, standards, guidelines, authorizations or
orders, including, without limitation, the Toxic Substances Control Act,


 


37














 


15 U.S.C. § 2601, et seq.; the Clean
Water Act, 33 U.S.C. § 1251, et seq.; the Clean Air
Act, 42 U.S.C. § 7401, et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f-300j, et seq.;
the Federal Water Pollution Control Act, 33 U.S.C. § 1321, et seq.; the Solid
Waste Disposal Act, 42 U.S.C § 6901, et seq.; the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. Section 9601 et seq.; the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et  seq.;
the Superfund Amendments and Reauthorization Act of 1986, Public Law
No. 99-499 (signed into law October 17, 1986); M.G.L. c.21C; and oil
and hazardous materials as defined in M.G.L. c.21E, as any of the same are from
time to time amended, and the rules and regulations promulgated
thereunder, and any judicial or administrative interpretation thereof,
including any judicial or administrative orders or judgments, and all other
federal, state and local statutes, laws, rules, regulations, codes, ordinances,
standards, guidelines, authorizations and orders regulating the generation,
storage, containment or disposal of any Hazardous Substances, including but not
limited to those relating to lead paint, radon gas, asbestos, storage and
disposal of oil, biological, chemical, radioactive and hazardous wastes,
substances and materials, and underground and above-ground oil storage tanks;
and any amendments, modifications or supplements of any of the foregoing.


 


“Hazardous Substances” means, but
shall not be limited to, any hazardous substances, hazardous waste,
environmental biological, chemical, radioactive substances, oil, petroleum
products and any waste or substance, which because of its quantitative
concentration, chemical, biological, radioactive, flammable, explosive, infectious
or other characteristics, constitutes or may reasonably be expected to
constitute or contribute to a danger or hazard to public health, safety or
welfare or to the environment, including without limitation any asbestos
(whether or not friable) and any asbestos-containing materials, lead paint,
waste oils, solvents and chlorinated oils, polychlorinated biphenyls (PCBs),
toxic metals, etchants, pickling and plating wastes, explosives, reactive
metals and compounds, pesticides, herbicides, radon gas, urea formaldehyde foam
insulation and chemical, biological and radioactive wastes, or any other
similar materials which are regulated by any Environmental Law; and the
regulations adopted under these acts, and including any other products or
materials subsequently found by any governmental authority with competent
jurisdiction to have adverse effects on the environment or the health and
safety of persons.


 


Tenant
shall not cause or permit any Hazardous Substances to be generated, produced,
brought upon, used, stored, treated or disposed of in or about or on the
Building by Tenant, its agents, employees, contractors, subtenants or invitees
without (i) Landlord’s prior written consent (except that Landlord’s prior
written consent shall not be required for (x) infectious biological
micro-organisms used in the Premises subject to and in compliance with the
conditions of Biosafety Level 1 or 2, as established by the Department of
Health and Human Services and as further described in the DHHS publication
Biosafety in Microbiological and Biomedical Laboratories (BMBL) (4th Edition)
or such nationally recognized new or replacement standards as may be reasonably
selected by Landlord if applicable to similar facilities in East Cambridge
(collectively, the “Lab Standards”) and (y) customary amounts
of Hazardous Substances customarily used in connection with


 


38

















 


laboratory
work with such micro-organisms, if such materials are reasonably related to the
conduct of Tenant’s business in the Premises), and (ii) complying with all
applicable Environmental Laws and Legal Requirements pertaining to the
transportation, storage, use or disposal of such Hazardous Substances,
including obtaining proper permits. In all events Tenant shall comply with all
applicable provisions of the Lab Standards. Landlord may take into account any
factors or facts that Landlord reasonably believes relevant in determining
whether to grant its consent. Subject to the foregoing obligations of Tenant, Landlord
consents to Tenant’s use of the Hazardous Substances listed in Exhibit 9.04(a).
From time to time at Landlord’s request, Tenant shall execute affidavits,
representations and the like concerning Tenant’s best knowledge and belief
regarding the presence or absence of Hazardous Substances on the Premises or,
to the extent resulting from Tenant’s acts or omissions, the Property.
Furthermore, on a quarterly basis beginning on the Delivery Date or more often
if reasonably required by Landlord’s mortgagee(s), Tenant shall provide
Landlord with a list detailing the types and amounts of all Hazardous
Substances being generated, produced, brought upon, used, stored, treated or
disposed of by or on behalf of Tenant in or about or on the Premises, Building
or Property and, upon Landlord’s request, copies of any manifests or other
federal, state or municipal filings by Tenant with respect to such Hazardous
Substances. Nothing in the preceding sentence shall obligate Tenant to provide
Landlord with proprietary information reasonably identified by Tenant as
confidential unless Tenant requests in writing that Landlord first enter into a
confidentiality agreement reasonably agreeable to the parties that prohibits
disclosure of such information except to the extent required by applicable law,
to prevent imminent harm to persons or property, in connection with dispute
resolution between Landlord and Tenant, where such other information is
otherwise available to the public by means other than disclosure by Landlord,
or where disclosed by Landlord to its agents, employees, officers, directors,
lenders, investors, or consultants subject to the terms of such confidentiality
agreement. Tenant agrees to pay the cost of any environmental inspection or
assessment requested by any lender that holds a security interest in the
Property or this Lease, or by any insurance carrier, to the extent that such
inspection or assessment pertains to any release, threat of release,
contamination, claim of contamination, loss or damage or determination of
condition (together, “Environmental 
Incidents”) in the Premises other than Environmental Incidents
arising prior to the date Tenant occupies the Premises for the conduct of its
business or migrating to the Premises from some other part of the Building
through no fault, act or omission of Tenant.


 


If
Tenant’s transportation, storage, use or disposal of Hazardous Substances on
the Property results in any escape, or release, reasonable threat of release,
the contamination of the soil or surface or ground water or any loss or damage
to person(s) or property, Tenant agrees to: (a) notify Landlord
immediately of such occurrence; (b) after consultation with Landlord,
clean up such occurrence in full compliance with Environmental Laws and (c) indemnify,
defend and hold Landlord, Ground Landlord, and the Indemnitees harmless from
and against any claims, suits, causes of action, costs and fees, including
attorneys’ fees and costs, arising from or connected with any such occurrence.
In the event of such occurrence, Tenant agrees to cooperate fully with Landlord
and provide such documents, affidavits and information as may be requested by
Landlord (1) to comply with any


 


39

















 


Environmental
Law or Legal Requirement, (2) to comply with the reasonable request of any
lender, purchaser or tenant, and/or (3) for any other reasonable reason
deemed necessary by Landlord. Tenant shall notify Landlord promptly in the
event of any spill or other release of any Hazardous Substance at, in, on,
under or about the Premises which is required to be reported to a governmental
authority under any Environmental Law or Legal Requirement, shall promptly
forward to Landlord copies of any notices received by Tenant relating to
alleged violations of any Environmental Law or Legal Requirement and shall
promptly pay when due any fine or assessment against Landlord, Tenant, or the
Premises relating to any violation during the Term of any Environmental Law or
Legal Requirement by Tenant, its employees, agents, independent contractors, or
invitees or with respect to the Premises or Property. If any governmental
authority files a lien against the Premises due to any act or omission,
intentional or unintentional, of Tenant, its agents, employees, or invitees, or
for which Tenant is responsible, resulting in the releasing, spilling, leaking,
leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous
Substance, Tenant shall, within thirty (30) days from the date that Tenant is
first given notice of such lien (or within such shorter period of time as may
be specified by Landlord if such governmental authority takes steps to cause
the Premises to be sold pursuant to such lien) either (A) pay the claim
and remove the lien or (B) furnish a cash deposit, bond or such other
security as is satisfactory in all respects to Landlord and sufficient to
discharge the lien completely.


 


At
Landlord’s election, Landlord may inspect the Premises and/or the Property for
Hazardous Substances at Landlord’s cost and expense within sixty (60) days of
Tenant’s surrender of the Premises at the expiration or earlier termination of
this Lease.


 


Landlord
shall indemnify, defend and hold Tenant harmless from and against any and all
liability, loss, suits, claims, actions, causes of action, proceedings,
demands, costs, penalties, damages, fines and expenses, including, without
limitation, reasonable attorneys fees, consultants’ fees, laboratory fees and
clean up costs, and the costs and expenses of investigating and defending any
claims or proceedings, resulting from, or attributable to (i) the presence
of any Hazardous Substances on the Property or the Premises arising from the
action or negligence of Landlord, its officers, employees, contractors, and
agents, or arising out of the generation, storage, treatment, handling,
transportation, disposal or release by Landlord of any Hazardous Substances at
or near the Premises or the Premises, and (ii) any violation(s) by
the foregoing party against whom indemnity is sought of any applicable law
regarding Hazardous Substances.


 


The
provisions of this Section 9.04 shall survive the expiration or earlier
termination of this Lease.


 


9.05.       Signs
and Auctions


 


Landlord
at Landlord’s cost shall install Tenant’s suite number at the main entry to the
Premises and identify tenant on the Building directory. In addition, Tenant, at
Tenant’s expense, shall have the right to Tenant’s proportionate share (i.e.
based on the rentable


 


40

















 


square
footage of the Premises divided by the rentable square footage of the Building)
of space for the purpose of identifying Tenant on one freestanding pedestal or
building-mounted sign identifying Building tenants on the Property, exterior to
the Building, in a location reasonably designated by Landlord, provided that
Landlord obtains the approvals necessary for the installation of such sign from
the City of Cambridge (Landlord agreeing to use commercially reasonable efforts
to obtain such approvals during the construction of the Base Building Work) and
any such sign identifying Tenant is reasonably approved by Landlord. Tenant
shall not place any other signs on the Building or Property or, if visible from
the exterior of the Building, the Premises, without Landlord’s prior written
consent, which may be granted or withheld in Landlord’s sole discretion. Tenant
shall not conduct or permit any auctions or sheriff’s sales at the Property.
Notwithstanding the foregoing, Tenant may, at Tenant’s cost, install a sign
identifying Tenant on up to two entry doors to the Premises provided said sign
conforms to Landlord’s Building standard signage and such installation complies
with all Legal Requirements.


 


9.06.       Landlord’s
Access


 


Landlord
or its agents may enter the Premises at all reasonable times to (i) show
the Premises to potential and actual buyers, investors, lenders, or prospective
tenants; (ii) to inspect and conduct tests in order to monitor Tenant’s
compliance with Legal Requirements governing Hazardous Substances; (iii) for
purposes described in Sections 2.01, 9.04 and/or 10.04(b) or (iv) for
any other purpose Landlord reasonably deems necessary in connection with the
exercise of Landlord’s rights and obligations under this Lease. Landlord shall
give Tenant reasonable prior notice (which may be oral) of any such entry and
shall not enter Tenant’s technical areas (if Tenant has previously notified
Landlord in writing of the location and extent of such technical areas) unless
accompanied by Tenant’s representative (whom Tenant shall promptly provide).
However, in case of emergency, Landlord may enter any part of the Premises with
such notice as is reasonably practicable or without prior notice if notice is
impracticable and without Tenant’s representative, if necessary, and shall if
no notice was provided, promptly notify Tenant of the nature and extent of such
access. Tenant shall be solely responsible, at Tenant’s sole cost and expense,
to provide any security measures that Tenant requires within, and at the
entries to, the Premises. Any entry by Landlord pursuant to this Section 9.06
shall be conducted in such a manner so as to minimize any disruption of
Tenant’s use of the Premises.


 


ARTICLE 10. CONDITION AND MAINTENANCE OF PREMISES AND

PROPERTY


 


10.01.     Existing
Conditions


 


Tenant
shall accept the Premises and the Property in their condition as of the Date of
Lease “as is,” subject to Landlord’s obligations to complete the Base Building
Work. Tenant acknowledges that except for any express representations in this
Lease, neither Landlord nor any person acting under Landlord has made any
representation as to the


 


41

















 


condition
of the Property or the suitability of the Property for Tenant’s intended use.
Tenant represents and warrants that Tenant has made its own inspection and
inquiry regarding the Property and is not relying on any representations of
Landlord or any Broker or persons acting under either of them.


 


10.02.     Exemption and Limitation of Landlord’s
Liability.


 


(a)             Exemption of
Landlord from Liability.  Tenant
shall insure its personal property under an all risk full replacement cost
property insurance policy. Landlord shall not be liable for any damage or
injury to the person, property or business (including loss of revenue, profits
or data) of Tenant, Tenant’s employees, agents, contractors or invitees, or any
other person on or about the Property; provided, however, that this Section 10.02(a) shall
not exempt Landlord from liability for Landlord’s gross negligence or willful
misconduct. This exemption shall apply whether such damage or injury is caused
by (among other things): (i) fire, steam, electricity, water, gas, sewage,
sewer gas or odors, snow, ice, frost or rain; (ii) the breakage, leaking,
obstruction or other defects of pipes, faucets, sprinklers, wires, appliances,
plumbing, windows, air conditioning or lighting fixtures or any other cause; (iii) any
other casualty or any taking; (iv) theft; (v) conditions in or about
the Property or from other sources or places; or (vi) any act or omission
of any other tenant.


 


(b)             Limitation On
Landlord’s Liability.  Tenant agrees
that Landlord shall be liable only for breaches of its covenants occurring
while it is owner of the Property (provided, however, that if Landlord from
time to time is lessee of the ground or improvements constituting the Building,
then Landlord’s period of ownership of the Property shall be deemed to mean
only that period while Landlord holds such leasehold interest). Upon any sale
or transfer of the Building (or Landlord’s interest as ground lessee, as
applicable), the transferor Landlord (including any mortgagee) shall be freed
of any liability or obligation thereafter arising to the extent that such
liabilities and obligations are assumed by such transferee and, thereafter,
Tenant shall look solely to the transferee Landlord as aforesaid for
satisfaction of such liability or obligation. Tenant and each person acting
under Tenant agrees to look solely to Landlord’s interest from time to time in the
Property, including the rents, insurance process and condemnation proceeds
therefrom, and the proceeds from the sale of the Property received by Landlord
if the successor to Landlord does not expressly assume in writing and agree to
be responsible for prior Landlord’s obligations and actions under the Lease,
for satisfaction of any claim against Landlord. No owner, trustee, beneficiary,
partner, member, manager, agent, or employee of Landlord (or of any mortgagee
or any lender or ground or improvements lessor) nor any person acting under any
of them shall ever be personally or individually liable to Tenant or any person
claiming under or through Tenant for or on account of any default by Landlord
or failure by Landlord to perform any of its obligations hereunder, or for or
on account of any amount or obligations that may be or become due under or in
connection with this Lease or the Premises; nor shall it or they ever be
answerable or liable in any equitable judicial proceeding or order beyond the
extent of their interest in the


 


42

















 


Property.
No deficit capital account of any member or partner of Landlord shall be deemed
to be a liability of such member or partner or an asset of Landlord.


 


(c)           No Indirect or
Consequential Damages. In no event shall Landlord or Tenant ever be liable
to the other for indirect or consequential damages (including loss of revenue,
profits, or data); provided, however, that no remedies or damages expressly
provided in this Lease shall be considered indirect or consequential, and that
the provisions of this Section 10.02(c) shall not apply to Sections
3.02 of this Lease.


 


10.03.     Landlord’s
Obligations.


 


(a) Base
Building Work. Tenant acknowledges that Landlord is in the process of constructing
the Building in substantial accordance with the plans and specifications
described in Exhibit 10.03(a), attached (the “Base Building Work”).
The Delivery Date shall be considered to have occurred only once the Base
Building Work is Substantially Completed. “Substantially Completed” or “Substantial
Completion” shall mean (i) the completion of the Base Building Work
excepting only punch list type items that shall include by way of example other
uncompleted elements of construction, decoration, painting, millwork or other
work and mechanical adjustment that will not interfere materially with Tenant’s
ability to commence and prosecute the Finish Work and (ii) the completion
of such work on the Building and elsewhere and issuance of a temporary certificate
of occupancy which will be sufficient to legally allow Tenant to obtain a
building permit to proceed with the Finish Work from the City of Cambridge.
Base Building Work shall be performed substantially in accordance with the Base
Building Construction Plans in all material respects, provided that Landlord
may modify the design of Base Building Work from time to time so long as the
Base Building Work remains consistent with the design standards for first-class
laboratory buildings and the modification (w) does not reduce the size of
the Premises by more than 2.0%, (x) does not alter the common areas of the
Building that are allocable to the Premises in connection with determining the
rentable square footage of the Premises pursuant to the Measurement Standard
(other than within the 2% variance permitted pursuant to the express terms of
the Measurement Standard) unless Landlord provides Tenant with a revised
measurement of the Premises in connection with such modification (and, if
necessary, adjusts Base Rent, Tenant’s Pro Rata Share, and other amounts set
forth in this Lease that are determined based on rentable square feet
accordingly), or (y) materially and adversely affect Tenant’s use of or
access to Premises for the Permitted Uses, or (z) does not make any
material change in the elevator systems or mechanical or electrical systems
serving the Premises with the result that such systems would be significantly
different than those shown on the Base Building Construction Plans, any
material change in standard structural floor load capacities from those shown
on the Base Building Construction Plans, or any material change in the quality
of materials and fixtures used in the lobby of the Building, common areas
benefiting the Premises, or passenger elevator cabs serving the Premises.
Tenant will, within fifteen (15) days of Landlord’s request after being fully
advised in writing of the proposed changes to the Base Building Construction
Plans, confirm in writing to Landlord either that such proposed changes comply
with the foregoing conditions (w)-(z),


 


43

















 


or
that they do not, in which case it will describe the effects in reasonable
detail and Landlord may not then effect such Base Building changes without
Tenant’s prior written consent. So long as Landlord’s request prominently so
notes, failure to respond within such time shall be deemed a confirmation that
such proposed changes comply with the foregoing conditions.


 


(b)           Repair and
Maintenance. Subject to the provisions of Article 12, and except for
damage caused by any act or omission of Tenant or persons acting under Tenant,
Landlord shall keep the Building and the foundation, roof, floor slabs,
Building systems (up to the Utility Switching Points, and otherwise to the
extent serving more than one tenant), structural supports, common areas,
exterior windows and exterior walls of the Building and the structural
components of the parking garage of the Building and, so long as Tenant has an
appurtenant right therein, the underground access passageway to 320 Bent Street
in good order, condition and repair, reasonable wear and tear excepted.
Landlord shall not be obligated to maintain or repair any interior windows,
doors, plate glass, the surfaces of walls or other fixtures, components or
equipment within the Premises, but the same shall be Tenant’s obligation.
Tenant shall promptly report in writing to Landlord any defective condition
known to it that Landlord is required to repair. Tenant waives the benefit of
any present or future law that provides Tenant the right to repair the Premises
or Property at Landlord’s expense or to terminate this Lease because of the
condition of the Property or Premises. Notwithstanding the fact that Landlord
provides security services at the Property at any time during the Term, to the
extent permitted by applicable law, Landlord shall not be deemed to owe Tenant,
or any person claiming by, through or under Tenant, any special duty or
standard of care as a result of Landlord’s provision of such security services
other than the duty or standard of care that would have been applied without
such services and in no event shall Landlord be responsible for the efficacy of
any such security measures.


 


10.04.     Tenant’s
Obligations.


 


(a)           Repair and
Maintenance. Except for work that Section 10.03 or Article 12 requires
Landlord to do, Tenant at its sole cost and expense shall keep the Premises
including without limitation all fixtures, systems and equipment to the extent
exclusively serving the Premises and now or hereafter on the Premises, or
elsewhere exclusively serving the Premises, in good order, condition and repair
(and at least as good order, condition and repair as they are in on the
Delivery Date or may be put in during the Term), reasonable wear and tear,
casualty and condemnation (which are subject to Article 13 hereof)
excepted; shall keep in a safe, secure and sanitary condition all trash and
rubbish temporarily stored at the Premises; and shall make all repairs and
replacements and to do all other work necessary for the foregoing purposes
whether the same may be ordinary or extraordinary, foreseen or unforeseen. The
foregoing shall include without limitation Tenant’s obligation to maintain
floors and floor coverings (excluding the floor slabs), to paint and repair
walls and doors, to replace and repair all interior glass and windows, ceiling
tiles, lights and light fixtures, pipes, drains and the like in the Premises.
Without limitation, Tenant shall be responsible for heating, ventilating and
air-conditioning systems


 


44

















 


to
the extent exclusively serving the Premises and Utility Services serving the
Premises from the Utility Switching Points, and Tenant shall secure, pay for,
and keep in force contracts with appropriate and reputable service companies
approved by Landlord providing for the regular maintenance of such systems.
Tenant shall hire its own cleaning contractor for the Premises.


 


If
anything required pursuant to this Section 10.04(a) to be repaired
cannot be fully repaired or restored, Tenant upon prior notice to Landlord
shall replace it at Tenant’s cost, even if the benefit or useful life of such
replacement extends beyond the Term provided, however that if (i) the
replacement has been approved in advance and in writing by Landlord, and (ii) the
property subject to replacement will become the property of Landlord pursuant
to the terms of this Lease at the conclusion of the Term, then within ninety
(90) day after the expiration of the Term, Landlord shall reimburse Tenant for
the unamortized portion of the capital replacement calculated as follows: upon
receipt of notice from Tenant of the need for such capital replacement,
Landlord and Tenant shall cooperate to determine the estimated cost of such
replacement. The actual cost of the replacement, as documented by Tenant and
subject to Landlord’s approval (which shall not be unreasonably withheld and if
withheld shall excuse Tenant from undertaking such capital replacement), shall
be amortized over the useful life of such replacement as reasonably determined
by Landlord on a straight line basis together with interest at the prime
interest rate from time to time announced by Bank of America (or any successor
financial institution). Tenant shall transfer to Landlord all of its rights and
interests in any warranties related to said replacement at the conclusion of
the Term. Tenant acknowledges that Landlord has the right, but not the
obligation, to reduce the amount payable at the conclusion of the Term to
Tenant pursuant to this paragraph by any amounts of Rent then due and payable
to Landlord.


 


(b)           Landlord’s Right
to Cure. If Tenant does not perform any of its obligations under Section 10.04(a),
Landlord upon twenty (20) days’ prior notice to Tenant (or without prior notice
in the case of an emergency) may perform such maintenance, repair or
replacement on Tenant’s behalf, and Tenant shall reimburse Landlord for all
costs reasonably incurred immediately upon demand.


 


(c)           Finish Work.
Following the Delivery Date, Tenant shall perform all work required to prepare
each Phase of the Premises for Tenant’s use and occupancy in accordance with
the Work Letter attached as Exhibit 10.04(c) hereto (the “Finish
Work Letter”).


 


10.05.     Tenant Work.


 


(a)           General. “Tenant
Work” shall mean all work, including demolition, improvements, additions
and alterations, in or to the Premises (including without limitation the Finish
Work). Without limitation, Tenant Work includes any penetrations in the walls,
partitions, ceilings or floors and all attached carpeting, all signs visible
from the exterior of the Premises, and any change in the exterior appearance of
the windows in the Premises 


 


45

















 


(including
shades, curtains and the like). All Tenant Work shall be subject to Landlord’s
prior written approval and shall be arranged and paid for by Tenant all as
provided herein; provided that any interior, non-structural Tenant Work
(including any series of related Tenant Work projects) that (a) costs less
than the Tenant Work Threshold Amount (which shall mean the amount of $50,000),
(b) does not adversely affect any fire-safety, telecommunications,
electrical, mechanical, or plumbing systems of the Building (“Core Building
Systems”), and (c) does not adversely affect any penetrations in or
otherwise affect any walls (other than non-structural walls located entirely
within the Premises), floors, roofs, or other structural elements of the
Building or any signs visible from the exterior of the Premises or any adverse
change in the exterior appearance of the windows in the Premises (including
shades, curtains and the like), any such work being referred to herein as “Minor
Work”, shall not require Landlord’s prior approval if Tenant delivers the
Construction Documents (as defined in Section 10.05(b)) for such Minor
Work to Landlord at least five (5) Business Days’ prior to commencing such
Minor Work. Landlord shall not unreasonably withhold, condition or delay
Landlord’s approval of Tenant Work, but Landlord’s disapproval of proposed
Tenant Work shall not be unreasonable where, in Landlord’s reasonable judgment,
such proposed Tenant Work (i) adversely affects any structural component
of the Building, (ii) would be incompatible with the Core Building
Systems, (iii) affects the exterior or the exterior appearance of the
Building or common areas within or around the Building or other property than
the Premises, (iv) diminishes the value of the Premises, or (v) requires
any unusual expense to readapt the Premises (unless Tenant pays such expense
and Tenant would otherwise be obligated to remove such Tenant Work at the
conclusion of the Term pursuant to the provisions of this Lease). Landlord
shall cooperate with Tenant, at no cost and liability to Landlord, to execute
any permit applications requiring execution by the Building owner in connection
with Tenant Work. Prior to commencing any Tenant Work affecting air
disbursement from ventilation systems serving Tenant or the Building, including
without limitation the installation of Tenant’s exhaust systems, Tenant shall
provide Landlord with a third party report from a consultant, and in a form,
reasonably acceptable to Landlord, showing that such work will not adversely
affect the ventilation systems of the Building (or of any other tenant in the
Building) and shall, upon completion of such work, provide Landlord with a
certification reasonably satisfactory to Landlord from such consultant
confirming that no such adverse effects have resulted from such work. In its
grant of approval of any Tenant Work, in order to require that Tenant remove at
Tenant’s cost such Tenant Work at the end of the Term, Landlord must notify
Tenant of such restoration requirement contemporaneously with Landlord’s approval
of the plans and specifications for such Tenant Work. If Tenant Work did not
require prior approval by Landlord, Landlord may require that such Tenant Work
be removed at the end of the Term if Tenant Work is not readily useable for
first class office and laboratory purposes. Landlord acknowledges and agrees
that it shall not require Tenant to remove any Finish Work at the end of the
term except to the extent that such Finish Work is not readily usable for
general office and laboratory purposes (which shall not require the removal of
an animal care facility in the First Lab Space in any event) as reasonably
determined by Landlord; if any such Finish Work is not readily usable for
general office and laboratory purposes and is


 


46

















 


designated
for removal by Landlord, then Tenant need only make such improvements to such
Finish Work as are reasonably necessary to make them readily reusable rather
than removing such Finish Work completely (i.e. Tenant shall have no obligation
to restore the Premises to shell condition).


 


(b)           Construction Documents. No Tenant Work shall be effected except in
accordance with complete, coordinated construction drawings and specifications (“Construction Documents”) prepared
in accordance with Exhibit 10.05(b). Before commencing any Tenant Work
requiring Landlord’s approval hereunder, Tenant shall obtain Landlord’s prior
written approval of the Construction Documents for such work, which approval
shall not be unreasonably withheld, conditioned or delayed. Landlord shall
approve or disapprove any Construction Documents in Landlord’s reasonable
discretion within ten (10) Business Days after receipt, with specific
reasons for disapproval. If Landlord disapproves such Construction Documents,
Tenant may make the changes reasonably required by Landlord, in which case
Landlord shall within five (5) Business Days thereafter approve or
disapprove (with specific reasons) such revised Construction Documents, or
Tenant may elect not to proceed with such work. This process shall continue
until such Construction Documents are approved. The Construction Documents
shall be prepared by an architect (“Tenant’s
Architect”) registered in the Commonwealth of Massachusetts,
experienced in the construction of tenant space improvements in comparable
buildings in the area where the Premises are located and, if the value of such
Tenant Work will equal or exceed the Tenant Work Threshold Amount or will
affect any Core Building Systems or structural components of the Building, the
identity of such Architect shall be approved by Landlord in advance, such
approval not to be unreasonably withheld (and subject in any event to the
provisions of Exhibit 10.04(c) 
with respect to the Architect for the Finish Work). Tenant shall be solely
responsible for the liabilities associated with and expenses of all
architectural and engineering services relating to Tenant Work and for the
adequacy, accuracy, and completeness of the Construction Documents even if
approved by Landlord (and even if Tenant’s Architect has been otherwise engaged
by Landlord in connection with the Building). The Construction Documents shall
set forth in detail the requirements for construction of the Tenant Work and
shall show all work necessary to complete the Tenant Work including all
cutting, fitting, and patching and all connections to the mechanical,
electrical, and plumbing systems and components of the Building. Submission of
the Construction Documents to Landlord for approval shall be deemed a warranty
that all Tenant Work described in the Construction Documents (i) complies
with all applicable laws, regulations, building codes, and first class design
standards, (ii) does not adversely affect any structural component of the
Building, (iii) is compatible with and does not adversely affect the Core
Building Systems, (iv) does not affect any property other than the
Property, (v) conforms to floor loading limits specified by Landlord, (vi) and
with respect to all materials, equipment and special designs, processes or
products, does not infringe on any patent or other proprietary rights of
others. The Construction Documents shall comply with Landlord’s requirements
for the uniform exterior appearance of the Building. Landlord’s approval of
Construction Documents shall signify only Landlord’s consent to the Tenant Work
shown and shall not result in any responsibility of Landlord concerning
compliance of the Tenant Work with


 


47

















 


laws,
regulations, or codes, or coordination or compatibility with any component or
system of the Building, or the feasibility of constructing the Tenant Work
without damage or harm to the Building, all of which shall be the sole
responsibility of Tenant.


 


(c)             Performance. The
identity of any person or entity (including any employee or agent of Tenant)
performing or designing any Tenant Work (“Tenant Contractor”) shall, if the
cost of such work in any instance is in excess of the Tenant Work Threshold
Amount or will affect any Core Building Systems or structural components of the
Building or involves any work other than interior, nonstructural alterations,
be approved in advance by Landlord, such approval not to be unreasonably
withheld (and subject in any event to the provisions of Exhibit 10.04(c) with
respect to the Tenant Contactors for the Finish Work). Once any Tenant
Contractor has been approved, then the same Tenant Contractor may thereafter be
used by Tenant for the same type of work until Landlord notifies Tenant that
such Tenant Contractor is no longer approved (except as is set forth in Exhibit 10.04(c) with
respect to the Finish Work). Tenant shall procure at Tenant’s expense all
necessary permits and licenses before undertaking any Tenant Work. Tenant shall
perform all Tenant Work at Tenant’s risk in compliance with all applicable laws
and in a good and workmanlike manner employing new materials of good quality
and producing a result at least equal in quality to the other parts of the
Premises. When any Tenant Work is in progress, Tenant shall cause to be
maintained insurance as described in the Tenant Work Insurance Schedule
attached as Exhibits 10.05(c) and such other insurance as may be
reasonably required by Landlord covering any additional hazards due to such
Tenant Work, and, other than for Minor Work, also such bonds or other
assurances of satisfactory completion and payment as Landlord may reasonably
require, in each case for the benefit of Landlord. Tenant shall reimburse
Landlord for Landlord’s reasonable costs of reviewing proposed Tenant Work,
assisting with governmental filings and providing construction supervision
(except to the extent provided in Exhibit 10.04(c) with respect to
the Finish Work) At all times while performing Tenant Work, Tenant shall
require any Tenant Contractor to comply with all applicable laws, regulations,
permits and Landlord’s Rules and Regulations relating to such work,
including without limitation use of loading areas, elevators and lobbies. Each
Tenant Contractor working on the roof of the Building shall coordinate with
Landlord’s roofing contractor, shall comply with its requirements and shall not
violate existing roof warranties. Each Tenant Contractor shall work on the
Premises without causing delay to or impairing of any guaranties, warranties or
the work of any other contractor. Similarly, Landlord shall cause its
contractors working on the Base Building Work following the Delivery Date, if
any, to coordinate their work with the Finish Work performed by a Tenant
Contractor so as not to unreasonably delay the construction of the Finish Work.


 


(d)             Payment.
Tenant shall pay the entire cost of all Tenant Work so that the Premises,
including Tenant’s leasehold, shall always be free of liens for labor or
materials. If any such lien is filed, then Tenant shall promptly (and always
within fifteen (15) days) discharge the same.


 


48














 


(e)           Other. Tenant must
schedule and coordinate all aspects of work with the Building manager and
Building engineer and shall make prior arrangements for elevator use with the
Building manager. If an operating engineer is required by any union
regulations, Tenant shall pay for such engineer. If shutdown of risers and
mains for electrical, mechanical and plumbing work is required, such work shall
be supervised by Landlord’s representative at Tenant’s cost other than Finish
Work undertaken prior to such time as any other tenant work has commenced in
the Building or any other tenant has occupied the Building (unless Landlord has
waived such charges with respect to the work being undertaken by such other
tenant). If special security arrangements must be made (e.g., in connection
with work outside normal business hours), Tenant Contractor shall pay the
actual cost of such security. No work shall be performed in Building mechanical
or electrical equipment rooms without Landlord’s approval, which approval shall
not be unreasonably withheld, conditioned or delayed, and all such work shall
be performed under Landlord’s supervision. Except in case of emergency, at
least forty-eight (48) hours’ prior notice prior notice must be given to the
Building management office prior to the shutdown of fire, sprinkler and other
alarm systems, and in case of emergency, prompt notice shall be given. In the
event that such work unintentionally alerts the Fire or Police Department or
any private alarm monitoring company through an alarm signal, Tenant shall be
liable for any fees or charges levied in connection with such alarm. Tenant
shall pay to Landlord such reasonable actual charges as may from time to time
be in effect with respect to any such shutdown and generally charged to tenants
of the Building. All demolition, installations, removals or other work that is
reasonably likely to inconvenience other tenants of the Building or disturb
Building operations must be scheduled with the Building manager at least
twenty-four (24) hours in advance.


 


Installations within the Premises (and elsewhere
where Tenant is permitted to make installations) shall not interfere with
existing services and shall be installed so as not to unreasonably interfere
with subsequent installation of ceilings or services for other tenants.
Redundant electrical, control and alarm systems and mechanical equipment and
sheet metal used or placed on the Property during construction and not
maintained as part of Tenant’s use of the Premises must be removed as part of
the work.


 


Each Tenant Contractor shall take all reasonable
steps to assure that any work is carried out without disruption from labor
disputes arising from whatever cause, including disputes concerning union
jurisdiction and the affiliation of workers employed by said Tenant Contractor
or its subcontractors. Tenant shall be responsible for, and shall reimburse
Landlord for, all actual costs and expenses, including reasonable attorneys’
fees incurred by Landlord in connection with the breach by any Tenant Contractor
of such obligations. If Tenant does not promptly resolve any labor dispute
caused by or relating to any Tenant Contractor, Landlord may in its sole
discretion request that Tenant remove such Tenant Contractor from the Property,
and if such Tenant Contractor is not promptly removed, Landlord may prohibit
such Tenant Contractor from entering the Property.


 


Upon
completion of any Tenant Work, Tenant shall give to Landlord (i) a copy of
the permanent certificate of occupancy and any other final governmental
approvals


 


49

















 


required
for such work, (ii) copies of “as built” plans and all construction
contracts and (iii) proof of payment for all labor and materials.


 


10.06.    Condition upon Termination


 


At
the expiration or earlier termination of this Lease, Tenant (and all persons
claiming by, through or under it) shall, without requiring any notice,
surrender the Premises (including all Finish Work and Tenant Work), and all
replacements thereof, except such additions, alterations, and other Tenant Work
as Landlord may direct to be removed at the time Landlord approves the plans
therefor. The Premises shall be surrendered to Landlord free and clear of any
mechanic’s liens (or any similar lien relating to labor and materials) filed
against any part of the Premises and free and clear of any financing or other
encumbrance on any equipment and/or Tenant Work to be surrendered with the
Premises. Upon surrender of the Premises Tenant shall give Landlord all keys and
security cards or codes to the Premises or remove such security system. Except
as specified in this Section 10.06 or as Landlord directs, Tenant shall
remove all of its trade fixtures, wire, cable, fiber (but not conduit, unless
Landlord shall so request, and in no event shall Tenant have any obligation to
remove wire, cable, fiber, or conduit that is installed in connection with the
Finish Work or any Tenant Work that must remain on the Premises at the
expiration or earlier termination of the Term), any personal property and all
Tenant’s signs wherever located. Tenant shall repair any damage to the Premises
and/or to the Property which results in the course of any removal and shall
restore the Premises and the Property to a fully functional and tenantable condition,
including filling all floor holes, removing all disconnected wiring back to
junction boxes and replacing all damaged ceiling tiles. Tenant shall yield up
the Premises broom-clean and in good order, repair and condition, except for
reasonable wear and tear (or damage by casualty or taking). Any property not
removed pursuant to this Section 10.06 within thirty (30) days after the
expiration or termination of the Lease shall be deemed abandoned and may be
removed and disposed of by Landlord, and Tenant shall pay to Landlord the cost
and expense of such removal and disposition and of any incidental repairs to
the Premises.


 


10.07.    Decommissioning
of the Premises


 


Prior
to the expiration of this Lease (or within sixty (60) days after any earlier
termination), Tenant shall clean and otherwise decommission all interior
surfaces (including floors, walls, ceilings, and counters), piping, supply
lines, waste lines and plumbing in and/or serving the Premises, and all exhaust
or other ductwork in and/or serving the Premises, in each case which has
carried or released or been exposed to any Hazardous Substances (as defined in Section 9.04
hereof), and shall otherwise clean the Premises so as to permit the report
hereinafter called for by this Section 10.07 to be issued. Prior to the
expiration of this Lease (or within sixty (60) days after any earlier
termination), Tenant, at Tenant’s expense, shall obtain for Landlord a report
addressed to Landlord (and, at Tenant’s election, Tenant) by a reputable
licensed environmental engineer that is designated by Tenant and acceptable to
Landlord in Landlord’s reasonable discretion (which shall not be unreasonably
delayed; the aforementioned sixty- (60-) day


 


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period
shall be extended one (1) day for each day Landlord delays its approval
beyond five (5) Business Days), which report shall be based on the
environmental engineer’s inspection of the Premises and shall show:


 


(i)                that the
Hazardous Substances, to the extent, if any, existing prior to such
decommissioning, have been removed as necessary so that the interior surfaces
of the Premises (including floors, walls, ceilings, and counters), process
piping, process supply lines, process waste lines and process plumbing, and all
such exhaust or other ductwork in the Premises, may be reused by a subsequent
tenant or disposed of in compliance with applicable Environmental Laws (as
defined in Section 9.04 hereof) without taking any special precautions for
Hazardous Substances, without incurring special costs or undertaking special
procedures for demolition, disposal, investigation, assessment, cleaning or
removal of Hazardous Substances and without incurring regulatory compliance
requirements or giving notice in connection with Hazardous Substances; and


 


(ii)               that the
Premises may be reoccupied for office or laboratory use, demolished or
renovated without taking any special precautions for existing Hazardous
Substances, without incurring special costs or undertaking special procedures
for disposal, investigation, assessment, cleaning or removal of Hazardous
Substances and without incurring regulatory requirements or giving notice in
connection with Hazardous Substances.


 


Further,
for purposes of clauses (i) and (ii): (a) materials previously or
hereafter generated from operations shall not be deemed part of the Premises,
and (b) “special costs” or “special procedures” shall mean costs or
procedures, as the case may be, that would not be incurred but for the nature
of the Hazardous Substances as Hazardous Substances instead of non-hazardous
materials. The report shall include reasonable detail concerning the clean-up
location, the tests run and the analytic results.


 


If
Tenant fails to perform its obligations under this Section 10.07, without
limiting any other right or remedy, Landlord may, on five (5) Business
Days’ prior written notice to Tenant perform such obligations at Tenant’s
expense, and Tenant shall promptly reimburse Landlord upon demand for all
out-of-pocket costs and expenses incurred by Landlord in connection with such
work. In addition, any such reimbursement shall include a ten percent (10%)
administrative fee (but in no event less than $1,000) to cover Landlord’s
overhead in undertaking such work. Tenant’s obligations under this Section 10.07
shall survive the expiration or earlier termination of this Lease.


 


ARTICLE 11. ROOFTOP LICENSE; ANTENNAS


 


11.01.    Rooftop
License


 


Effective
as of the Delivery Date, Landlord grants Tenant the appurtenant, exclusive, and
irrevocable (except upon the expiration or earlier termination of this Lease)
rights at no additional charge, but otherwise subject to the terms and
conditions of this


 


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Lease: (a) to use
Tenant’s proportionate share of the areas on the roof of the Building (within
the screened-in areas of the Building roof shown on the Base Building
Construction Plans, but not on the mechanical penthouse roof) reasonably
designated by Landlord (the “Rooftop Installation Areas”) to operate,
maintain, repair and replace rooftop mechanical equipment, appurtenant to the
Permitted Uses installed as part of the Finish Work or otherwise as permitted
pursuant to Section 10.05 (“Tenant’s Equipment”) and (b) to
install, operate, maintain, repair and replace an antenna serving the Tenant’s
operations in the Premises and not to exceed 18 inches in diameter, and other
related communications equipment, (collectively, the “Antenna”) in a
location to be mutually agreed upon between Landlord and Tenant (which may be a
location on the roof of 320 Bent Street pursuant to a separate license
agreement consistent with the terms of this Article 11 and other rights
under this Lease as to the right to operate an Antenna even if 320 Bent Street
is no longer available) (the “Antenna Installation Area”). Tenant’s
Equipment and the Antenna located in the Rooftop Installation Areas are defined
together as the “Rooftop Equipment”.


 


11.02.    Installation and
Maintenance of Rooftop Equipment


 


Tenant shall install the
Rooftop Equipment at its sole cost and expense (except as otherwise provided
with respect to the Finish Work), at such times and in such manner as Landlord
may reasonably designate (but in any event, with respect to the Finish Work, in
a manner not to unreasonably delay the construction of the Finish Work) and in
accordance with all of the applicable provisions of this Lease regarding Tenant
Work. Tenant shall not install or operate the Rooftop Equipment until it
receives prior written approval of the Construction Documents in accordance
with Section 10.05(b). Landlord may withhold approval if the installation
or operation of the Rooftop Equipment if the same reasonably would be expected
to damage the structural integrity of the Building or interfere with Building
operations or systems.


 


Tenant shall engage
Landlord’s roofer (or another roofing contractor reasonably approved by
Landlord and approved by Landlord’s roof manufacturer) before beginning any
rooftop installations or repairs of the Rooftop Equipment, whether under this Article 11
or otherwise, and shall always comply with the roof warranty governing the
protection of the roof and modifications to the roof. Tenant shall obtain a
letter from Landlord's roof manufacturer following completion of such work stating
that the roof warranty remains in effect, if required pursuant to the terms of
the roof warranty. Tenant, at its sole cost and expense, shall inspect areas on
the rooftop where the Rooftop Equipment is located at least twice annually and
correct any loose bolts, fittings or other appurtenances and shall repair any
damage to the roof caused by the installation or operation of the Rooftop
Equipment. Tenant covenants that the installation, existence, maintenance and
operation of the Rooftop Equipment shall not violate any Legal Requirements or
constitute a nuisance under law. Tenant shall pay Landlord on demand (i) all
applicable taxes or governmental charges, fees, or impositions imposed on
Landlord because of Tenant’s use of the Rooftop Equipment under this Article 11
and (ii) the amount of any increase in Landlord’s insurance premiums as a
result of the installation of the Rooftop Equipment. Landlord assumes no
responsibility for interference in the


 


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operation
of the Rooftop Equipment caused by other tenants’ equipment, or for
interference in the operation of other tenants’ equipment caused by the Rooftop
Equipment, but Landlord shall reasonably cooperate with Tenant (at no cost to
Landlord) to resolve any such interference and shall use commercially
reasonable efforts to (at no cost to Landlord) enforce any rights Landlord may
have to prevent such interference to the extent caused by equipment installed
after the applicable Rooftop Equipment.


 


11.03.      Interference by Rooftop Equipment


 


Landlord
may grant future roof or other similar rights to other parties, and Landlord
shall be contractually obligated to cause such other parties to minimize
interference with Rooftop Equipment. If Rooftop Equipment (i) causes
physical damage to the structural integrity of the Building, (ii) interferes
with any telecommunications, mechanical or other systems existing as of the
date of this Lease, later installed pursuant to rights granted prior to the
date of this Lease located at the Building, or installed prior to the time that
Tenant first submits Construction Documents for such Rooftop Equipment to
Landlord for Landlord’s approval, (iii) interferes with any other service
provided to other tenants in the Building by rooftop or other installations
first installed before Tenant’s Rooftop Equipment, or (iv) interferes with
any other tenants’ business, in each case in excess of that permissible under
F.C.C. or other regulations (to the extent that such regulations apply and do
not require such tenants or those providing such services to correct such
interference or damage), Tenant shall within two (2) Business Days of
notice (which may be oral if given to Michael Higgins at (617) 621-8414 or such
other person or persons designated in writing by Tenant to Landlord from time
to time) of a claim of interference or damage cooperate with Landlord or any
other tenant or third party making such claim to determine the source of the
damage or interference and effect a prompt solution at Tenant’s expense (if
Rooftop Equipment caused such interference or damage). In the event Tenant
disputes Landlord’s allegation that Rooftop Equipment is causing a problem with
the Building (including, but not limited to, the electrical, HVAC, and mechanical
systems of the Building) and/or any other Building tenants’ equipment in the
Building, in writing delivered within two (2) Business Days of receiving
Landlord’s notice claiming such interference, then Landlord and Tenant shall
meet to discuss a solution, and if within seven (7) days of their initial
meeting Landlord and Tenant are unable to resolve the dispute, then the matter
shall be submitted to arbitration in accordance with the provisions set forth
below.


 


The
parties shall direct the Boston office of the AAA to appoint an arbitrator who
shall have a minimum of ten (10) years’ experience in commercial real
estate disputes and who shall not be affiliated with either Landlord or Tenant.
Both Landlord and Tenant shall have the opportunity to present evidence and
outside consultants to the arbitrator.


 


The
arbitration shall be conducted in accordance with the expedited commercial
arbitration rules of the AAA insofar as such rules are not
inconsistent with the provisions of this Lease (in which case the provisions of
this Lease shall govern). The cost of the arbitration (exclusive of each party’s
witness and attorneys’ fees, which shall be paid by


 


53

















 


such
party) shall be borne equally by the parties. Any such arbitration shall be
commenced within 10 days after demand (or, if later, appointment of the
arbitrator).


 


Within
ten (10) days of appointment, the arbitrator shall determine whether or
not the Rooftop Equipment is causing a problem with the Building or Property
and/or any other tenants’ equipment in the Building or Property as set forth
above, and the appropriate resolution, if any. The arbitrator’s decision shall
be final and binding on the parties. If Tenant shall fail to cooperate with
Landlord in resolving any such interference or if Tenant shall fail to
implement the arbitrator’s decision within ten (10) days after it is
issued, Landlord may at any time thereafter (i) declare an Event of
Default and pursue the remedies set forth in Section 14 of this Lease
and/or (ii) relocate the item(s) of the Rooftop Equipment in dispute
in a manner consistent with the arbitral decision.


 


11.04.     Relocation of Rooftop Equipment


 


Based
on Landlord’s good faith determination that such a relocation is necessary, Landlord
reserves the right to cause Tenant to relocate the Rooftop Equipment located on
the roof to comparably functional space on the roof of the Building by giving
Tenant prior notice of such intention to relocate. If within thirty (30) days
after receipt of such notice Tenant has not agreed with Landlord on the space
to which the Rooftop Equipment is to be relocated, the timing of such
relocation, and the terms of such relocation, then Landlord shall have the
right to make all such determinations in its reasonable judgment. Landlord
agrees to pay the cost of moving the Rooftop Equipment to such other space,
taking such other steps necessary to ensure comparable functionality of the
Rooftop Equipment, and finishing such space to a condition comparable to the
then condition of the current location of the Rooftop Equipment. Tenant shall
arrange for the relocation of the Rooftop Equipment within sixty (60) days
after a comparable space is agreed upon or selected by Landlord, as the case
may be. In the event Tenant fails to arrange for said relocation within the
sixty- (60)- day period, Landlord shall have the right to arrange for the
relocation of said Rooftop Equipment at Landlord’s expense, all of which shall
be performed in a manner designed to minimize interference with Tenant’s
business.


 


ARTICLE 12. DAMAGE OR DESTRUCTION; CONDEMNATION


 


12.01.    Damage or Destruction of
Premises


 


If
the Premises or any part thereof shall be damaged by fire or other insured
casualty, then, subject to the last paragraph of this Section, Landlord shall
proceed with diligence, subject to then applicable statutes, building codes,
zoning ordinances and regulations of any governmental authority, and at the
expense of Landlord (but, if damage exceeds $2,000,000, only to the extent of
insurance proceeds made available to Landlord by any mortgagee of the Building
and any ground lessor) to repair or cause to be repaired such damage (other
than any Tenant Work, but including the Finish Work once each Phase of the same
is substantially completed to the extent Tenant has provided Landlord with the
information reasonably required by Landlord to insure such Finish Work (which
shall be


 


54

















 


assumed
to have occurred unless Landlord advises Tenant to the contrary in writing
indicating what specific information it needs to obtain such insurance)). All
such repairs made necessary by the negligence or willful misconduct of Tenant
shall be made at the Tenant’s expense to the extent that the cost of such repairs
are less than the deductible amount in Landlord’s insurance policy. The cost of
any repairs performed under this Section by Landlord at Tenant’s expense
(including costs of design fees, financing, and charges for administration,
overhead and construction management services by Landlord and Landlord’s
contractor) shall constitute Additional Rent hereunder. All repairs to and
replacements of Tenant’s personal property and any Tenant Work (but not the
Finish Work once each Phase of the same is substantially completed, except to
the extent Tenant has failed to provide Landlord with the information
reasonably required by Landlord to insure such Finish Work (which shall be not
assumed to have occurred unless Landlord advises Tenant of such fact in writing
indicating what specific information it needs to obtain such insurance)) shall
be made by and at the expense of Tenant. If the Premises shall have been
rendered unfit for use and occupation hereunder by reason of such damage or any
damage to the common areas reasonably required for access to and service of the
Premises, or the parking garage or any part of any thereof to the extent
rendering Tenant unable to use its parking passes, the Base Rent, parking
charges, and Tenant’s Pro Rata Share of Total Operating Costs or a just and
proportionate part thereof, according to the nature and extent to which the
Premises (and such other areas) shall have been so rendered unfit, shall be
abated until the Premises (and such other areas) (except as to Tenant Property,
and any Tenant Work other than the Finish Work once each phase of the same is
substantially completed except to the extent Tenant has failed to provide
Landlord with the information reasonably required by Landlord to insure such
Finish Work (which shall not be assumed to have occurred unless Landlord
advises Tenant of such fact in writing indicating what specific information it
needs to obtain such insurance)) shall have been restored as nearly as
practicable to the condition in which they were immediately prior to such fire
or other casualty, plus an additional thirty (30) day period. Landlord shall
not be liable for delays in the making of any such repairs that are due to
government regulation, casualties, and strikes, unavailability of labor and
materials, delays in obtaining insurance proceeds, and other causes beyond the
reasonable control of Landlord, nor shall Landlord be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting from delays in repairing such damage, provided, however, that Base
Rent and Tenant’s Pro Rata Share of Total Operating Costs shall be abated to
the extent set forth above during any delay not caused by Tenant.


 


If
(i) the Premises are so damaged by fire or other casualty (whether or not
insured) at any time during the last twenty-four (24) months of the Term that
the cost to repair such damage is reasonably estimated to exceed one-third of
the total Base Rent payable hereunder for the period from the estimated
completion date of repair until the end of the Term, (ii) at any time the
Building (or any portion thereof, whether or not including any portion of the
Premises) is so damaged by fire or other casualty (whether or not insured) that
substantial alteration or reconstruction or demolition of the Building (or a
portion thereof) shall in Landlord’s judgment be required, or (iii) at any
time damage to the Building exceeding $2,000,000 occurs by fire or other
insured casualty and any mortgagee


 


55

















 


or
ground lessor shall refuse to permit insurance proceeds to be utilized for the
repair or replacement of such property and Landlord determines not to repair
such damage, then and in any of such events, this Lease and the term hereof may
be terminated at the election of Landlord by a notice from Landlord to Tenant
within sixty (60) days, or such longer period as is required to complete
arrangements with any mortgagee or ground lessor regarding such situation,
following such fire or other casualty; the effective termination date pursuant
to such notice shall be not less than thirty (30) days after the day on which
such termination notice is received by Tenant not to exceed in all events four
months after the date of the applicable casualty. If any mortgagee or ground
lessor refuses to permit insurance proceeds to be applied to replacement of the
Premises, and neither Landlord, such mortgagee or ground lessor has commenced
such replacement within three (3) months following adjustment of such
casualty loss with the insurer, then Tenant may, until any such replacement
commences, terminate this Lease by giving at least thirty (30) days prior
written notice thereof to Landlord and such termination shall be effective on
the date specified if such replacement has not then commenced. In the event of
any termination, the Term shall expire as though such effective termination
date were the date originally stipulated in Article 1 for the end of the
Term and the Base Rent and Additional Rent for Total Operating Costs (to the
extent not abated as set forth above) shall be apportioned as of such date.


 


Landlord,
within sixty (60) days after such fire or casualty or taking, shall notify
Tenant of the estimated date for completing such restoration. If in Landlord’s
reasonable estimate the time to restore the Premises will take greater than
nine (9) months to complete, then, within thirty (30) days after such
notice, time being of the essence, Tenant may notify Landlord that it is
terminating this Lease, effective as of the date of Tenant’s notice. If the
Landlord fails to restore the Premises to a condition substantially suitable
for their intended use within the longer of nine (9) months, or such
longer period as Landlord has reasonably estimated for restoration, plus a
contingency period equal to 10% of such period, of such casualty, then Tenant
may upon 30 days’ prior written notice terminate this Lease.


 


12.02.    Eminent Domain


 


In
the event that all or any substantial part of the Premises or the Building (or
any portion of the common areas reasonably required for access to and service
of the Premises, or the parking garage or any part of any thereof to the extent
rendering Tenant unable to use its parking passes) is taken (other than for
temporary use not to exceed 90 days, hereafter described) by public authority
under power of eminent domain (or by conveyance in lieu thereof), then by
notice given within three months following the recording of such taking (or
conveyance) in the appropriate registry of deeds, this Lease may be terminated
at Landlord’s election thirty (30) days after such notice, and Rent shall be
apportioned as of the date of termination. If this Lease is not terminated as
aforesaid, subject to the rights of mortgagees Landlord shall within a
reasonable time thereafter, diligently restore what may remain of the Premises
(excluding any personal property of Tenant, Tenant Work (other than Finish Work
following the substantial completion of such work with respect to


 


56

















 


each
Phase) or other items installed or paid for by Tenant that Tenant is permitted
or may be required to remove upon expiration) to a tenantable condition. In the
event some portion of rentable floor area of the Premises, the areas of the
common areas reasonably necessary for access to and service of the Premises, or
the parking garage or any part of any thereof is taken to the extent that
Tenant is unable to use its parking passes (other than for temporary use) and
this Lease is not terminated, Base Rent, Additional Rent, parking rent, and
Tenant’s Pro Rata Share of Operating Costs shall be proportionally abated, as
applicable, for the remainder of the Term. In the event of any taking of the
Premises or any part thereof for temporary use, (i) this Lease shall be
and remain unaffected thereby and rent shall not abate, and (ii) Tenant
shall be entitled to receive for itself such portion or portions of any award
made for such use with respect to the period of the taking that is within the
Term, provided that if such taking shall remain in force at the expiration or
earlier termination of this Lease, then Tenant shall pay to Landlord a sum
equal to the reasonable cost of performing Tenant’s obligations hereunder with
respect to surrender of the Premises and upon such payment shall be excused
from such obligations.


 


If
any taking renders 50% or more of the Premises untenantable, including on
account of the taking of the areas of the common areas reasonably necessary for
access to and service of the Premises, and restoration of the effects of such
taking cannot be repaired or restored in Landlord’s reasonable estimate within
nine (9) months from the date of such taking (or within four (4) months
if within the last year of the Term), Tenant may upon 30 days’ prior written
notice terminate this Lease provided that such termination election shall be
null and void if Landlord completes such restoration within 30 days of such
notice or if Tenant exercises its right to extend the Term pursuant to Section 3.03
of this Lease after receiving notice of such taking.


 


Any
damages that are expressly awarded to Tenant on account of its relocation
expenses and Tenant’s personal property, and specifically so designated, shall
belong to Tenant. Except as provided in the preceding sentence of this
paragraph, Landlord reserves to itself, and Tenant releases and assigns to
Landlord, all rights to damages accruing on account of any taking or by reason
of any act of any public authority for which damages are payable, provided,
however, that Tenant shall receive the proceeds of any separate award for the
unamortized value of Finish Work in excess of the Finish Work Allowance and, if
applicable, Additional Allowance (provided that such award does not reduce the
amount available to Landlord). Subject to its rights hereunder, Tenant agrees
to execute such further instruments of assignment as may be reasonably
requested by Landlord, and to turn over to Landlord any damages that may be
recovered in any proceeding or otherwise.


 


ARTICLE 13. ASSIGNMENT AND SUBLETTING


 


13.01.    Landlord’s Consent
Required


 


Except
for a Permitted Transfer, as defined below, Tenant shall not transfer any part
of the Premises or of its interest in this Lease to any other entity, whether
by sale,


 


57

















 


assignment,
mortgage, sublease, license, transfer, operation of law or act of Tenant (each
a “Transfer”) without Landlord’s prior written consent as provided in Section 13.02
below. Consent to one Transfer does not imply consent to any other Transfer or
waive the consent requirement. Any attempted Transfer without consent shall be
void at the election of Landlord. Any entity to which a Transfer is made is a “Transferee.”


 


The
following transactions (any of them, a “Permitted Transfer”) shall not
require the consent of Landlord provided that Landlord shall receive notice
thereof in accordance with Section 13.05, below, together with reasonable
evidence that the transaction is in fact one of the following (and provided
further that the proposed Transfer complies with all other provisions of this
Lease, including, without limitation, this Article 13, other than the
first paragraph of this Section 13.01, does not alter Landlord’s rights
under the Lease, and does not impose any additional obligation on Landlord):


 


(a)           Any Transfer to an
entity acquiring all or substantially all of the stock or assets of Tenant,
whether by way of merger, consolidation or otherwise (any such entity, a “Successor
Entity”), so long as the resulting entity has a net worth and financial
condition as good as Tenant’s at the time immediately prior to the events
culminating in such transfer; or


 


(b)           Any Transfer to an
entity directly or indirectly controlled, controlling, or under common control
with Tenant (any such entity, a “Related Entity”). For purposes of this
clause (b), “control” shall mean possession of more than 50 percent
ownership of the shares of beneficial interest of the entity in question
together with the power to control and manage the affairs thereof either
directly or by election of directors and/or officers.


 


(c)           Any initial public offering
of Tenant or private placement of Tenant.


 


13.02.    Landlord’s Consent


 


Tenant’s
request for Landlord’s consent to any Transfer shall describe the details of
the proposed Transfer, including the name, business and financial condition of
the prospective Transferee, and the financial terms of the proposed Transfer
(e.g., term, rent and security deposit which Landlord shall hold as
confidential information); Tenant shall also provide any other information
Landlord reasonably deems relevant. Landlord shall not unreasonably withhold
its consent to any assignment or subletting of the Premises, provided that
Tenant is not then in default under this Lease (following the giving of notice
of such default, where applicable) but it shall not be deemed unreasonable for
Landlord to deny consent for the following reasons: (i) the business of
the proposed Transferee and the proposed use of the Premises are inconsistent
with the Permitted Uses; (ii) Landlord’s reasonable dissatisfaction with
the net worth and financial condition of the proposed Transferee as it relates
to such Transferee’s proposed obligations if such Transfer, together with other
transfers then in effect, is for more than ten (10) percent of the
Premises; (iii) Tenant’s compliance with all of its obligations under this
Lease; and (iv) such other factors as Landlord may reasonably deem
relevant.


 


58














 


Subject
to the next sentence, Tenant shall not offer to make, or enter into
negotiations with respect to an assignment, sublease or transfer to: (i) any
tenant at the Property or the property known as 320 Bent Street, Cambridge,
Massachusetts (“320 Bent Street”)
or entity directly or indirectly controlled by, controlling, or under the
common control with, any other tenant at the Property or 320 Bent Street,
unless there is no competing space then available to be offered for lease at
the Property and 320 Bent; or (ii) any party then negotiating to lease
other space at the Property or 320 Bent Street, unless there is no competing
space then available to be offered for lease at the Property or 320 Bent
Street.


 


At
Landlord’s election, Tenant shall pay to Landlord as Additional Rent fifty
percent (50%) of the Profits on any Transfer other than a Permitted Transfer as
and when received by Tenant, unless Landlord notifies Tenant and the Transferee
that the Transferee shall pay Landlord’s share of the Profits directly to
Landlord. “Profits” means (A) all
rent, fees and other consideration paid for or in respect of the Transfer,
including fees in excess of reasonable amounts under any collateral agreements
(the intent being to prohibit Tenant from shifting occupancy costs to
collateral agreements), less (B) the Rent and other sums payable under
this Lease (or if the Transfer is a sublease of part of the Premises, allocable
to the subleased premises) and all reasonable costs and expenses directly
incurred by Tenant in connection with such Transfer, including without
limitation reasonable real estate broker’s commissions and reasonable costs of
renovation or construction of tenant improvements required by the Transfer, and
reasonable legal fees. Tenant may recover these reasonable costs and expenses
before paying Profits to Landlord. Tenant shall give Landlord a written
statement certifying all amounts to be paid from any Transfer (including any
collateral agreements) within thirty (30) days after the transfer agreement is
signed and from time to time thereafter on Landlord’s request, and Landlord may
inspect Tenant’s books and records to verify the accuracy of such statements.
On written request, Tenant shall promptly furnish to Landlord copies of all
Transfer documents, certified by Tenant to be complete, true and correct.


 


13.03.     No Release


 


Notwithstanding
any Transfer and whether or not the same is consented to, the liability of
Tenant to Landlord shall remain direct and primary. Any Transferee of all or
substantially all of Tenant’s interest in the Premises, shall be jointly and
severally liable with Tenant to Landlord for the performance of all of Tenant’s
covenants under this Lease; and such assignee shall upon request execute and
deliver such instruments as Landlord reasonably requests in confirmation
thereof (and agrees that its failure to do so shall be a default). Tenant
hereby irrevocably authorizes Landlord, upon the occurrence of a default
(following the giving of notice of such default, where applicable) to collect
Rent from any Transferee (and upon notice any Transferee shall pay directly to
Landlord) and apply the net amount collected to the Rent and other charges
reserved under this Lease. No Transfer shall be deemed a waiver of the
provisions of this Section, or the acceptance of the Transferee as a tenant, or
a release of Tenant from direct and primary liability for the performance of
all of the covenants of this Lease. The consent by Landlord to any


 


59

















 


Transfer
shall not relieve Tenant or any Transferee from the obligation of obtaining the
express consent of Landlord to any modification of such Transfer or a further
Transfer by Tenant or such Transferee. Notwithstanding anything to the contrary
in the documents effecting the Transfer, Landlord’s consent shall not alter in
any manner whatsoever the terms of this Lease, to which any Transfer at all
times shall be subject and subordinate. The transfer of an interest in the
Premises or this Lease in violation of this Article shall be a default for
which there is no cure period.


 


Anything
contained in the foregoing provisions of this section to the contrary
notwithstanding, neither Tenant nor any Transferee nor any other person having
an interest in the possession, use, occupancy or utilization of the Premises
shall enter into any lease, sublease, assignment, license, concession or other
agreement for use, occupancy or utilization of space in the Premises that
provides for rental or other payment for such use, occupancy or utilization
based, in whole or in part, on the net income or profits derived by any person
from the Premises leased, used, occupied or utilized (other than an amount
based on a fixed percentage or percentages of receipts or sales), and any such
purported lease, sublease, assignment, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises.


 


13.04.     Right of Termination or Recapture


 


Before
any Transfer (excluding Permitted Transfers) that, when aggregated with all
prior Transfers (excluding Permitted Transfers) then in effect, would result in
the total rentable square footage of the Premises subject to Transfers being
equal to at least 25 percent of the rentable square footage of the Premises,
Tenant shall offer Landlord in writing the right to terminate this Lease with
respect to such portion of the Premises subject to the proposed Transfer as of
a future date specified in the offer and prior to the proposed Transfer. If
within twenty (20) days after receiving such offer Landlord elects in writing
to accept it, this Lease shall terminate with respect to such portion of the
Premises subject to the proposed Transfer as of the specified date. If Landlord
does not accept the offer within the twenty (20) day period, Tenant may proceed
with the Transfer, subject to the other requirements of this Article 13.


 


13.05.     Additional Procedures


 


At
least thirty (30) days prior to any Transfer (or at least ten (10) days
prior to any Permitted Transfer unless such Permitted Transfer is part of a
transaction that is subject to a bona fide, arms’ length confidentiality
agreement preventing the disclosure of such Transfer, in which case Tenant
shall provide such materials within 10 days following such Permitted Transfer),
Tenant shall deliver to Landlord (i) a true and complete copy of the fully
executed instrument or instruments evidencing any Transfer, (ii) a written
agreement of the Transferee agreeing with Landlord to perform and observe all
of the terms, covenants, and conditions of this Lease undertaken by such
Transferee to the extent applicable to such Transferee. Tenant shall pay to
Landlord, as Additional Rent,


 


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Landlord’s
reasonable attorneys’ fees in reviewing any proposed Transfer, whether or not
Landlord consents.


 


ARTICLE 14. EVENTS OF DEFAULT AND REMEDIES


 


14.01.     Covenants
and Conditions


 


Tenant’s
performance of each of its obligations under this Lease is a condition as well
as a covenant. Tenant’s right to continue in possession of the Premises is
conditioned upon such performance. Time is of the essence in performance of all
covenants and conditions set forth herein.


 


14.02.      Events of
Default


 


If
Tenant fails to pay Rent when due and such default continues for ten (10) days,
or if more than three default notices are properly given in any 12-month
period, or if Tenant (or any transferee of Tenant) makes any transfer of the
Premises in violation of this Lease, or if a petition is filed by Tenant (or
any transferee) for insolvency or for appointment of a receiver, trustee or
assignee or for adjudication, reorganization or arrangement under any
bankruptcy act, or if any similar petition is filed against Tenant (or any
transferee) and such petition filed against is not dismissed within sixty (60)
days thereafter, or if any representation or warranty made by Tenant is untrue
in any material respect, or if Tenant fails to perform any other covenant or
condition hereunder and such default continues longer than any period
(following notice, if expressly required) expressly provided for the correction
thereof (and if no period is expressly provided then for thirty (30) days after
notice is given, provided, however, that such period shall be reasonably
extended in the case of any such non-monetary default that cannot be cured
within such period only if the matter complained of can be cured, Tenant begins
promptly and thereafter diligently completes the cure within ninety (90) days
of notice of such default), or, so long as Landlord is the landlord (or an
affiliate of the landlord) under that certain lease between Tenant and Landlord
dated January 8, 2002, as amended (the “320
Bent Lease”) for premises located at 320 Bent Street, an Event of
Default by Tenant under the 320 Bent Lease (as it may be amended from time to
time), then, and in any such case, Landlord and its agents lawfully may, in
addition to any remedies for any preceding breach, immediately or at any time
thereafter without further demand or notice in accordance with process of law,
enter upon any part of the Premises in the name of the whole or mail or deliver
a notice of termination of the Term of this Lease addressed to Tenant at the
Premises or any other address herein, and thereby terminate the Term and
repossess the Premises as of Landlord’s former estate. Any default beyond
applicable notice and cure periods by Tenant is referred to herein as an “Event of Default”. At Landlord’s
election such notice of termination may be included in any notice of default.
Upon such entry or mailing the Term shall terminate, all executory rights of
Tenant and all obligations of Landlord will immediately cease, and Landlord may
expel Tenant and all persons claiming under Tenant and remove their effects
without any trespass and without prejudice to any remedies for arrears of Rent
or prior breach. If Landlord engages


 


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attorneys
in connection with any failure to perform by Tenant hereunder, Tenant shall
reimburse Landlord for the reasonable fees of such attorneys on demand as
Additional Rent. Without implying that other provisions do not survive, the
provisions of this Article shall survive the Term or earlier termination
of this Lease.


 


14.03.      Remedies for Default.


 


(a)           Reletting
Expenses Damages. If the Term of this Lease is terminated for an Event
of Default, Tenant covenants, as an additional cumulative obligation after such
termination, to pay all of Landlord’s reasonable costs, including reasonable
attorneys fees, related to Tenant’s Event of Default and in collecting amounts
due and all reasonable expenses in connection with reletting, including tenant
inducements to new tenants, brokerage commissions, fees for legal services,
expenses of preparing the Premises for reletting and the like together (“Reletting
Expenses”). It is agreed that Landlord may (i) relet the Premises or
part or parts thereof for a term or terms that may be equal to, less than or
exceed the period that would otherwise have constituted the balance of the
Term, and may grant such tenant inducements, including free rent, as Landlord
in its sole discretion considers advisable, and (ii) make such alterations
to the Premises as Landlord in its sole discretion considers advisable, and no
failure to relet or to collect rent under any reletting shall operate to reduce
Tenant’s liability. Landlord shall use reasonable efforts to relet the
Premises. Any such obligation to relet will be subject to Landlord’s reasonable
objectives of developing its property in a harmonious manner with appropriate
mixes of tenants, uses, floor areas, terms and the like. Landlord’s Reletting
Expenses together with all other sums provided for whether incurred prior to or
after such termination will be due upon demand.


 


(b)           Termination
Damages. If the Term of this Lease is terminated for an Event of Default,
unless and until Landlord elects lump sum liquidated damages described in the
next paragraph, Tenant covenants, as an additional, cumulative obligation after
any such termination, to pay punctually to Landlord all the sums which remain
unpaid and perform all of its obligations in which remain unperformed the same
manner as if the Term had not been terminated. In calculating such amounts
Tenant will be credited with the net proceeds of any rent then actually
received by Landlord from a reletting of the Premises after deducting all Rent
that has not then been paid by Tenant, provided that Tenant shall never be
entitled to receive any portion of the re-letting proceeds, even if the same
exceed the Rent originally due hereunder.


 


(c)          Lump Sum
Liquidated Damages. If this Lease is terminated for default, Tenant
covenants, as an additional, cumulative obligation after any such termination,
to pay forthwith to Landlord at Landlord’s election made by written notice at
any time after termination, as liquidated damages a single lump sum payment
equal to either (x) the sum of (i) all sums to be paid by
Tenant and not then paid at the time of such election, plus, (ii) the
excess of the present value of all of the Rent reserved for the residue of the
Term (with Additional Rent deemed to increase at the CPI in each year on a
compounding basis) over the present value of the aggregate fair market rent and
Additional Rent payable (if less than the Rent payable hereunder) on account of
the Premises during such period, which fair


 


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market
rent shall be reduced by reasonable projections of vacancies and by Landlord’s
Reletting Expenses described above to the extent not theretofore paid to
Landlord) or (y) 12 months of Base Rent and Additional Rent at the rate
last payable by Tenant under this Lease or less if less than a full year is
then left on the Term. (The Federal Reserve discount rate (or equivalent) shall
be used in calculating such present values under clause (x)(ii), and in the
event the parties are unable to agree on such fair market rent, the matter
shall be submitted, upon the demand of either party, to the office of the AAA
closest to the Property, with a request for arbitration in accordance with the rules of
the AAA by a single arbitrator who shall be a licensed real estate broker with
at least 10 years experience in the leasing of 1,000,000 or more square feet of
floor area of buildings similar in character and location to the Premises,
whose decision shall be conclusive and binding on the parties.)


 


(d)             Remedies
Cumulative; Jury Waiver; Late Performance. The remedies to which
Landlord may resort under this Lease, and all other rights and remedies of
Landlord are cumulative, and any two or more may be exercised at the same time.
Nothing in this Lease shall limit the right of Landlord to prove and obtain in
proceedings for bankruptcy or insolvency an amount equal to the maximum allowed
by any statute or rule of law in effect at the time; and Tenant agrees
that the fair value for occupancy of all or any part of the Premises at all
times shall never be less than the Base Rent and all Additional Rent payable
from time to time. Tenant shall also indemnify and hold Landlord harmless in
the manner provided elsewhere herein if Landlord shall become or be made a
party to any claim or action necessary to protect Landlord’s interest under
this Lease in a bankruptcy proceeding, or other proceeding under Title 11 of
the United States Code, as amended. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN
ANY ACTION TO WHICH THEY ARE PARTIES, and further agree that any action arising
out of this Lease (except an action for possession by Landlord, which may be
brought in whatever manner or place provided by law) shall be brought in the
Trial Court, Superior Court Department, or the Land Court, in the county where
the Premises are located.


 


(e)             Waivers; Accord
and Satisfaction. No consent by Landlord or Tenant to any act or
omission that otherwise would be a default shall be construed to permit other
similar acts or omissions. Neither party’s failure to seek redress for
violation or to insist upon the strict performance of any covenant, nor the
receipt by Landlord of Rent with knowledge of any breach of covenant, shall be
deemed a consent to or waiver of such breach. No breach of covenant shall be
implied to have been waived unless such is in writing, signed by the party
benefiting from such covenant and delivered to the other party; and no
acceptance by Landlord of a lesser sum than the Rent due shall be deemed to be
other than on account of the earliest installment of such Rent. Nor shall any
endorsement or statement on any check or in any letter accompanying any check
or payment be deemed an accord and satisfaction; and Landlord may accept such
check or payment without prejudice to Landlord’s right to recover the balance
of such installment or pursue any other right or remedy. The acceptance by
Landlord of any Rent following the giving of any default and/or termination
notice shall not be deemed a waiver of such notice. Tenant shall not interpose
any counterclaim or counterclaims (other than compulsory counterclaims that


 


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would
be lost if not interposed) in a summary proceeding or in any action based on
non-payment of Rent.


 


(f)              Landlord’s Curing. If Tenant
fails to perform any covenant within any applicable notice, grace or cure
period, then Landlord at its option may (without waiving any right or remedy
for Tenant’s non-performance) at any time thereafter perform the covenant for
the account of Tenant. Tenant shall upon demand reimburse Landlord’s cost
(including reasonable attorneys’ fees) of so performing on demand as Additional
Rent. Notwithstanding any other provision concerning cure periods, Landlord may
cure any non-performance for the account of Tenant after such notice to Tenant,
if any, as is reasonable under the circumstances if curing prior to the
expiration of the applicable cure period is reasonably necessary to prevent
likely damage to the Premises or likely injury to persons, or to protect
Landlord’s interest in the Premises.


 


ARTICLE 15. LETTER OF CREDIT.


 


15.01.     Letter of
Credit


 


Upon
the submission of Tenant’s first requisition for amounts from the Finish Work
Allowance or, if applicable, the Additional Allowance amounts pursuant to the
Finish Work Letter, Tenant shall deliver to Landlord a clean, irrevocable,
freely transferable letter of credit substantially in the form attached as Exhibit 15.01 (as amended or
replaced from time to time pursuant to this Section 15.01, the “Letter of Credit”) in the amount
initially required as set forth in Section 1.14 as security for the
payment of all Rent and the performance and observance of the agreements and
conditions in this Lease contained on the part of Tenant to be performed and
observed. Simultaneously with the execution of this Lease, Tenant shall deliver
to Landlord evidence reasonably satisfactory to Landlord that Silicon Valley
Bank is prepared to issue the Letter of Credit in the form attached as Exhibit 15.01.


 


The
Letter of Credit shall be increased by delivery to Landlord of a replacement
Letter of Credit or an amendment to the then existing Letter of Credit from
time to time as follows:


 


	
  Date of Increase

  	
   

  	
  Amount of Increase

  	
   

  	
  Aggregate Amount of

  Letter of Credit

  
	
  Upon
  the submission of Tenant’s first requisition for Finish Work Allowance and/or
  Additional Allowance amounts with respect to the First Floor Space

  	
   

  	
  $605,000.00 (assuming that the First Floor Space is 10,000 rentable
  square feet)

  	
   

  	
  $

  	
  2,529,508.00

  



 


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  Upon
  the submission of Tenant’s first requisition for Finish Work Allowance and/or
  Additional Allowance amounts with respect to the First Lab Space

  	
   

  	
  $1,322,228.00 (assuming that the First Lab Space is 21,865 rentable
  square feet)

  	
   

  	
  $

  	
  3,851,736.00

  
	
  Upon
  the submission of Tenant’s first requisition for Finish Work Allowance and/or
  Additional Allowance amounts with respect to the remainder of the Premises

  	
   

  	
  $3,669,990.60 (based on the assumptions set forth above with respect
  to rentable square feet)

  	
   

  	
  $

  	
  7,521,726.60

  



 


The
foregoing amounts are subject to reduction pursuant to the terms of Section 10.04(c)-2
of Exhibit 10.04(c).


 


Tenant’s
failure to deliver the Letter of Credit within the time periods set forth in
this Section 15.01 shall be deemed an Event of Default for which there is
no cure period. The Letter of Credit, if not in the form attached hereto as Exhibit 15.01,
must in all cases be in form and substance acceptable to Landlord and any
mortgage lender, as security for Tenant’s obligations under this Lease, and
issued by a commercial bank, trust company or national banking association,
which has outstanding, unsecured, uninsured and unguaranteed indebtedness, or
shall have issued a letter of credit or other credit facility that constitutes
the primary security for an outstanding indebtedness (which is otherwise
uninsured and unguaranteed), that is then (and thereafter continues to be)
rated, without regard to qualification of such rating by symbols such as “+” or
“-” or numerical notation “A” or better by Moody’s Investment Service (or its
successor) or “A” or better by Standard & Poor’s Ratings Service (or
its successor) (and is not on credit-watch or similar credit review with
negative implication), and has combined capital, surplus and undivided profits
of not less than $1,000,000,000. Landlord hereby approves of Silicon Valley
Bank as the initial issuer of such Letter of Credit. In the event the issuer of
the Letter of Credit is downgraded so that it no longer satisfies the rating
requirements set forth in this Article 15, Landlord shall have the right,
to require Tenant to procure a replacement Letter of Credit from an issuer that
satisfies the requirements of this Article 15 within fifteen (15) days
after Landlord notifies Tenant of such requirement; provided that Landlord
shall cooperate with Tenant in exchanging the existing Letter of Credit for the
new Letter of Credit so that Tenant is not required to have two Letters of
Credit outstanding simultaneously. The Letter of Credit shall be renewed at
least 60 days prior to its expiration from time to time, and, if not so
renewed, Landlord or its mortgage lender may draw all or a portion of the
letter of credit and hold the proceeds as set forth below, but in that event,
Tenant shall, upon demand, provide Landlord with a new Letter of Credit meeting
the requirements of this Lease, in lieu of such cash, and upon receipt of such
replacement Letter of Credit, Landlord shall promptly return such cash security
deposit to Tenant. Notwithstanding the foregoing, the Letter of Credit to be
delivered by Tenant for the final period before the expiration of the Term of
this Lease shall be for a term ending not sooner than ninety-five (95) days
after the expiration of the Term of this Lease (whether by means of a so-called


 


65

















 


evergreen
provision or otherwise).


 


If,
and as soon as, there shall exist an Event of Default (and on the occasion of
each Event of Default if there shall be more than one), Landlord may draw upon
the Letter of Credit at any time and from time to time in such amount or
amounts as may be necessary to cure the Event of Default(s) or to
reimburse Landlord for any sum(s) which Landlord may have spent to cure
the Event of Default(s), and if Landlord has terminated this Lease due to
Tenant’s Event of Default(s), Landlord may also draw upon the Letter of Credit
in such amount (or all) as may be necessary to obtain any amounts from time to
time owed to Landlord by Tenant after termination. In the case of each such
drawing (except a drawing occurring after termination or expiration of this
Lease), Tenant shall promptly, on demand, cause the existing Letter of Credit
to be amended to be once again in the full amount required under this Lease or
a new Letter of Credit, in the amount so drawn, to be issued to Landlord.
Notwithstanding the foregoing, Landlord shall have the right, at any time when
an Event of Default exists, to draw the entire Letter of Credit and hold the
proceeds thereof to be applied from time to time against damages and losses
under this Lease, but in that event, if Landlord does not terminate this Lease
as a result of such Event of Default and permits (without implying any
obligation to permit) Tenant to cure all outstanding Events of Default, so long
as no new Event of Default occurs within sixty (60) days thereafter, Tenant
shall be permitted to replace the cash security deposit with a Letter of
Credit, and upon receipt of the Letter of Credit, Landlord shall release the
cash security deposit to Tenant. Any amount drawn by Landlord shall not be
deemed to fix or determine the amounts to which Landlord is entitled under this
Lease or otherwise, and Landlord shall be entitled to pursue any remedies
provided for in this Lease to the extent Landlord is unable or elects, in its
sole and absolute discretion, not to obtain complete or partial satisfaction by
drawing upon the Letter of Credit. If at the end of the Term of this Lease no
default of Tenant shall exist, or if such a default shall exist, upon cure of
such default, the Letter of Credit, or any cash held in lieu thereof, shall be
returned to Tenant within thirty (30) days thereafter. For purposes of this
Article, an Event of Default shall also include any default that is prevented
or delayed from ripening into an Event of Default due to Landlord’s inability
to give any required notice or the tolling of any grace or cure period caused
by any stay or injunction arising from the bankruptcy of Tenant.


 


If
Landlord conveys Landlord’s interest under this Lease, the Letter of Credit (or
cash in lieu thereof) shall be turned over by Landlord to Landlord’s
transferee, and, if so turned over, Tenant agrees to look solely to such
transferee for proper application thereof in accordance with the terms of this
Lease and the return thereof in accordance therewith, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
Letter of Credit to a new landlord. If Landlord does not so transfer the Letter
of Credit (or any cash held in lieu thereof) to its successor (including any
lender or ground lessor succeeding to the interest of Landlord), then such
successor Landlord shall not be entitled to require Tenant to post any new
Letter of Credit (or cash in lieu thereof) except to the extent that such
failure to transfer the Letter of Credit or cash held in lieu thereof is due to
the drawing on such Letter of Credit or cash in accordance with the terms of
this Lease. Upon the request of Landlord, from time to time, Tenant shall make
arrangements


 


66

















 


satisfactory
to Landlord in its reasonable discretion for the transfer of the Letter of
Credit, at Tenant’s sole cost and expense to any successor landlord or
mortgagee of the Property, and from any such mortgagee to Landlord or any
successor mortgagee, provided that the transferee agrees in writing to hold and
apply the Letter of Credit in accordance with the terms hereof. Tenant shall
not assign or encumber or attempt to assign or encumber the Letter of Credit
and neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance or attempted assignment or encumbrance. Upon ten (10) Business
Days’ prior written notice from Landlord, Tenant shall cause the Letter of
Credit to be modified so that it names any mortgagee as a co-beneficiary.
Tenant shall provide any documentation reasonably requested by Landlord’s
mortgagee to evidence such mortgagee’s collateral interest in the Letter of
Credit, provided, however, that Tenant shall not be required to incur any
material out-of-pocket costs to do so.


 


ARTICLE 16. PROTECTION OF LENDERS/GROUND LANDLORD


 


16.01.     Subordination and Superiority of
Lease


 


Tenant
agrees that this Lease and the rights of Tenant hereunder will be subject and
subordinate to any lien of the holder of any existing or future mortgage, and
to the rights of any lessor under any ground or improvements lease of the
Building (all mortgages and ground or improvements leases of any priority are
collectively referred to in this Lease as “mortgage,” and the holder or lessor
thereof from time to time as a “mortgagee”), and to all advances and interest
thereunder and all modifications, renewals, extensions and consolidations
thereof; provided that any subordination of this Lease to any existing mortgage
as of the Date of Lease shall be conditioned upon Landlord delivering to Tenant
a written, recordable Subordination, Non-Disturbance and Attornment Agreement
from the mortgagee seeking to have this Lease subordinated to its interest in
the form attached as Exhibit 16.01. With respect to future liens of
any mortgage hereafter granted, Landlord shall provide to Tenant an agreement
(in the form of Exhibit 16.01 or in such other form as such
mortgagee may reasonably request provided such form is substantially consistent
with the provisions of this Section 16.01 and Exhibit 16.01) in which
the mortgagee agrees that such mortgagee shall not disturb Tenant in its
possession of the Premises under the terms of the Lease upon Tenant’s execution
thereof and attornment to such mortgagee as Landlord and performance of its
Lease covenants (which conditions Tenant agrees with all mortgagees to
perform). Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between the mortgagee and Tenant upon all of the
terms, conditions and covenants as are set forth in this Lease, except that the
mortgagee shall not be (i) liable in any way to Tenant for any act or
omission, neglect or default on the part of Landlord under this Lease, (ii) responsible
for any monies owing by or on deposit with Landlord to the credit of Tenant
(except to the extent any such deposit is actually received by such mortgagee),
(iii) subject to any counterclaim or setoff which theretofore accrued to Tenant
against Landlord except to the extent of setoffs expressly provided pursuant to
Section 10.04(c)-2 of Exhibit 10.04(c), (iv) bound by any
amendment or modification of this Lease subsequent to such mortgage, or by any
previous prepayment of Rent for more than one (1) month, which was not
approved in writing by the mortgagee, (v) liable beyond


 


67

















 


mortgagee’s
interest in the Property, (vi) responsible for the performance of any work
to be done by the Landlord under this Lease to render the Premises ready for
occupancy by the Tenant (provided that nothing in this clause (vi) shall
prohibit Tenant from exercising its express remedy to terminate this Lease as
set forth in Section 3.01, above), or (vii) required to remove any
person occupying the Premises or any part thereof, except if such person claims
under the mortgagee. Tenant agrees that any present or future mortgagee may at
its option unilaterally elect to subordinate, in whole or in part and by instrument
in form and substance satisfactory to such mortgagee alone, the lien of its
mortgagee (or the priority of its ground lease) to some or all provisions of
this Lease. Nothing in clause (i), above, shall be deemed to relieve any
mortgagee succeeding to the interest of Landlord hereunder of its obligation to
comply with the obligations of Landlord under this Lease from and after the
date of such succession.


 


Tenant
agrees that this Lease shall survive the merger of estates of ground (or
improvements) lessor and lessee. Until a mortgagee (either superior or
subordinate to this Lease) forecloses Landlord’s equity of redemption (or
terminates or succeeds to a new lease in the case of a ground or improvements
lease) no mortgagee shall be liable for failure to perform any of Landlord’s
obligations (and such mortgagee shall thereafter be liable only after it
succeeds to and holds Landlord’s interest and then only as limited herein).
Tenant shall, if requested by Landlord or any mortgagee, give notice of any
alleged non-performance on the part of Landlord to any such mortgagee provided
that an address for such mortgagee has been designated to Tenant in writing,
and Tenant agrees that (except with respect to the Outside Delivery Date in Section 3.01) such mortgagee shall
have a separate, consecutive reasonable cure period of no less than thirty (30)
days (to be reasonably extended in the same manner Landlord’s cure period is to
be extended and for such additional periods as is necessary to allow such
mortgagee to take possession of the Property) following Landlord’s cure period
during which such mortgagee may, but need not, cure any non-performance by
Landlord. The agreements in this Lease with respect to the rights and powers of
a mortgagee constitute a continuing offer to any person that may be accepted by
taking a mortgage (or entering into a ground or improvements lease) of the
Premises. This Section shall be self-operative, but in confirmation
thereof, Tenant shall execute and deliver the subordination, nondisturbance and
attornment agreement in the form of Exhibit 16.01
(or in such other form as such mortgagee may reasonably request) provided such
form is substantially consistent with the provisions of this Section 16.01.


 


16.02.     Attornment


 


If
Landlord’s interest in the Property is acquired by any beneficiary under a deed
of trust, mortgagee or purchaser at a foreclosure sale, Tenant shall attorn to
the transferee of or successor to Landlord’s interest in the Property and
recognize it as Landlord under this Lease provided that Tenant has received a
subordination, non-disturbance and attornment agreement as required pursuant to
Section 16.01. Tenant waives the protection of any statute or rule of
law which gives Tenant any right to terminate this Lease or surrender possession
of the Premises upon the transfer of Landlord’s interest.


 


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16.03.     Rent Assignment


 


If
from time to time Landlord assigns this Lease or the rents payable hereunder to
any person, whether such assignment is conditional in nature or otherwise, such
assignment shall not be deemed an assumption by the assignee of any obligations
of Landlord; but, subject to the limitations herein including Sections 16.01
and 10.02(b), the assignee shall be responsible only for non-performance of
Landlord’s obligations that occur after it succeeds to, and only during the
period it holds possession of, Landlord’s interest in the Premises after
foreclosure or voluntary deed in lieu of foreclosure.


 


16.04.     Other Instruments


 


The
provisions of this Article shall be self-operative; nevertheless, Tenant
agrees to execute, acknowledge and deliver any subordination, attornment or
priority agreements or other instruments conforming to the provisions of this
Lease (and being otherwise commercially reasonable) from time to time requested
by Landlord or any mortgagee, consistent with the terms of this Lease with
respect to the rights of Tenant, and further agrees that its failure to do so
within ten (10) days after written request shall be a default for which
this Lease may be terminated without further notice. Without limitation, where
Tenant in this Lease indemnifies or otherwise covenants for the benefit of
mortgagees, such agreements are for the benefit of mortgagees as third party
beneficiaries; and at the request of Landlord, Tenant from time to time will
confirm such matters directly with such mortgagee.


 


16.05.     Estoppel Certificates


 


Within
fifteen (15) days after request by a party to this Lease, the other party shall
execute, acknowledge and deliver a written statement certifying: (i) that
none of the terms or provisions of this Lease have been changed (or if they
have been changed, stating how); (ii) that this Lease has not been
canceled or terminated; (iii) the last date of payment of Base Rent and
other charges and the time period covered; (iv) that to the knowledge of
the party executing the certificate, the party requesting such certificate is
not in default under this Lease (or, if in default, describing it in reasonable
detail); and (v) such other information with respect this Lease as may be
reasonably requested or which any prospective purchaser or encumbrancer of the
Property may reasonably require. Landlord may deliver any such statement by
Tenant to any such prospective purchaser or encumbrancer, which may rely
conclusively upon such statement as true and correct.


 


16.06.     Ground Lease


 


Landlord
and Tenant acknowledge that (i) Landlord is a tenant under a Ground Lease
dated as of March 30, 1999, as amended by a letter dated July 29,
1999, and an Agreement Regarding Arbitration and Lease Amendments dated December 15,
1999 (as amended, the “Ground Lease”) with MBA — Rogers Street, LLC,
successor in interest to MBA — Cambridge, LLC and O&T Realty, LLC, as
Landlord (the “Ground Landlord”) and


 


69

















 


(ii) this
Lease and all rights of Tenant hereunder are and shall be subject and
subordinate to the Ground Lease and all renewals, extensions, modifications,
and replacements thereof, provided, however that no such modifications or
replacements shall have any adverse affect on Tenant’s rights under this Lease
or Landlord’s ability to perform its obligations under this Lease. Landlord
shall deliver a non-disturbance and attornment agreement (an “NDA” ) for
the benefit of Tenant substantially in the form attached hereto as Exhibit 16.06
within 30 days following the completion of the Base Building Work (or, if
Ground Landlord agrees that the NDA is effective only upon completion of the
Base Building Work, within 30 days following the Date of Lease). Landlord
represents and warrants as of the date hereof that: (i) the copy of the
Ground Lease furnished by Landlord to Tenant constitutes a true, complete and
correct copy of the Ground Lease (subject to redactions), (ii) there are
no amendments, modifications, or supplemental agreements regarding the Ground Lease
except as previously disclosed to Tenant; and (iii) to the best of
Landlord’s knowledge, the Ground Lease is in full force and effect.


 


Landlord
covenants to Tenant that, so long as there is not an uncured Event of Default
by Tenant of its obligations under this Lease, Landlord shall (i) pay all
rent payable by Landlord pursuant to the Ground Lease and will perform all
other obligations imposed on Landlord pursuant to the Ground Lease to the
extent that failure to perform the same would adversely affect Tenant’s use or
occupancy of the Premises and rights under this Lease (except to the extent
that such obligations are delegated to and assumed by Tenant pursuant to the
terms of this Lease) and (ii) will not terminate the Ground Lease except
for the good faith exercise of Landlord’s remedies expressly provided under the
Ground Lease (including, without limitation, Landlord’s remedies in the event
of casualty or condemnation) or enter into an amendment of the Ground Lease
shortening the term of the Ground Lease to less than the Term hereunder as may
be extended by the exercise of any and all extension options hereunder, or
otherwise materially, adversely impacting Tenant’s rights hereunder.


 


16.07      Tenant’s
Financial Condition


 


Unless
Tenant’s annual and quarterly financial reports are publicly available, and
except during any quiet, non-disclosure or confidentiality period with respect
to any securities offering to the extent applicable to disclosure to Landlord
pursuant to the regulations of the Securities and Exchange Commission or any
major nationally recognized listing service or stock exchange on which Tenant
is listed (as reasonably evidenced to Landlord by Tenant), Tenant, within
twenty (20) days after request from Landlord from time to time, shall deliver
to Landlord Tenant’s annual audited financial statements for the latest
available two (2) fiscal years, including the year ending no more than
eighteen (18) months prior to Landlord’s request, and an unaudited financial
statement dated no more than twelve (12) months prior to Landlord’s request,
and quarterly financial statements certified in writing by Tenant’s Chief
Financial Officer. Landlord may deliver such financial statements to its
mortgagees and lenders and prospective mortgagees, lenders and purchasers.
Tenant represents and warrants to Landlord that each such financial statement
shall be true and accurate as of its date.


 


70

















 


Except
for publicly available information, financial statements shall be confidential
and shall be used only for the purposes set forth in this Section 16.07.
If Tenant is publicly traded company, it shall give Landlord its most recently
filed annual and quarterly reports on request.


 


ARTICLE 17. MISCELLANEOUS PROVISIONS


 


17.01.    Landlord’s
Consent Fees


 


In
addition to fees and expenses in connection with Tenant Work, as described in Section 10.05,
Tenant shall pay Landlord’s reasonable fees and expenses, including legal,
engineering and other consultants’ fees and expenses, incurred in connection
with Tenant’s request for Landlord’s consent under Article 13 (Assignment
and Subletting) or in connection with any other act by Tenant which requires
Landlord’s consent or approval under this Lease.


 


17.02.    Notice of Landlord’s Default


 


Tenant
shall give notice of Landlord’s failure to perform any of its obligations under
this Lease to Landlord, and to any mortgagee or beneficiary under any deed of
trust encumbering the Property whose name and address have been given to
Tenant. Landlord shall not be in default under this Lease unless Landlord (or
such mortgagee or beneficiary) fails to cure such non-performance within thirty
(30) days after receipt of Tenant’s notice. However, if such non-performance
requires more than thirty (30) days to cure, such period shall be reasonably
extended in the case of any such non-performance that cannot be cured by the
payment of money where such non-performance can be cured, and Landlord begins
promptly within said thirty (30) day period and thereafter diligently completes
the cure


 


17.03.    Quiet Enjoyment


 


Landlord
agrees that, so long as Tenant is not in default under the terms of this Lease,
Tenant shall lawfully and quietly hold, occupy and enjoy the Premises during
the Term of this Lease without disturbance by Landlord or by any person
claiming through or under Landlord, subject to the terms of this Lease.


 


17.04.    Interpretation


 


In
any provision relating to the conduct, acts or omissions of Tenant, the term “Tenant”
includes Tenant’s agents, employees, contractors, invitees, successors or
others using the Premises with Tenant’s expressed or implied permission. In any
provision relating to the conduct, acts or omissions of Landlord, the term “Landlord”
includes Landlord’s agents, employees, and contractors.


 


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17.05.     Notices


 


All
notices, requests and other communications required under this Lease shall be
in writing, addressed as specified in Article 1, and shall be (i) personally
delivered, (ii) sent by certified mail, return receipt requested, postage
prepaid, or (iii) delivered by a national overnight delivery service that
maintains delivery records. All notices shall be effective upon delivery (or
refusal to accept delivery). Either party may change its notice address upon
written notice to the other party.


 


17.06.     No Recordation


 


Tenant
shall not record this Lease. Either Landlord or Tenant may require that a
statutory notice, short form or memorandum of this Lease executed by both
parties be recorded. Tenant may record any subordination agreement (notifying
Landlord of the date and book and page number) or request Landlord to
record it on Tenant’s behalf. The party requesting or requiring such recording
shall pay all expenses, transfer taxes and recording fees.


 


17.07.     Corporate Authority


 


Tenant
warrants and represents that (a) Tenant is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which such
entity was organized; (b) Tenant has the authority to own its property and
to carry on its business as contemplated under this Lease; (c) Tenant has
duly executed and delivered this Lease; (d) the execution, delivery and
performance by Tenant of this Lease (i) are within the powers of Tenant, (ii) have
been duly authorized by all requisite action and does not require consent from
any other person or entity, (iii) will not violate any provision of law or
any order of any court or agency of government, or any agreement or other
instrument to which Tenant is a party or by which it or any of its property is
bound, and (iv) will not result in the imposition of any lien or charge on
any of Tenant’s property, except by the provisions of this Lease; and (e) the
Lease is a valid and binding obligation of Tenant in accordance with its terms.
This warranty and representation shall survive the termination of the Term.


 


Landlord
represents and warrants that (a) Landlord is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which such
entity was organized; (b) Landlord has the authority to own its property
and to carry on its business as contemplated under this Lease; (c) Landlord
has duly executed and delivered this Lease; (d) the execution, delivery
and performance by Landlord of this Lease (i) are within the powers of
Landlord, (ii) have been duly authorized by all requisite action, (iii) will
not violate any provisions of law or any order of any court or agency of
government, or any agreement or other instrument to which Landlord is a party or
by which it or any of its property is bound, and (iv) will not result in
the imposition of any lien or charge on any of Landlord’s property, except by
the provisions of this Lease; and (e) the Lease is a valid and


 


72

















 


binding
obligation of Landlord in accordance with its terms. This warranty and
representation shall survive the termination of the Term.


 


17.08.     Joint and
Several Liability


 


If
more than one party signs this Lease as Tenant, they shall be jointly and
severally liable for all obligations of Tenant.


 


17.09.     Force
Majeure


 


If
a party cannot perform any of its obligations due to acts of God, war, civil
commotion, labor disputes, strikes, fire, flood or other casualty, shortages of
or the inability to obtain labor or material from customary sources on
customary term, government regulation or restriction, weather conditions, or
any similar event to the foregoing, or acts, neglects or delays of the other
party (in all instances, other than the inability to make payments when due),
the time provided for performing such obligations shall be extended by a period
of time equal to the duration of the events.


 


17.10.     Limitation
of Warranties


 


Landlord
and Tenant expressly agree that there are and shall be no implied warranties of
merchantability, habitability, suitability, fitness for a particular purpose or
of any other kind arising out of this Lease, and there are no warranties that
extend beyond those expressly set forth in this Lease.


 


17.11.     No Other Brokers


 


Landlord
and Tenant represent and warrant to each other that the Broker(s) named in
Article 1 are the only agents, brokers, finders or other parties with whom
such party has dealt who may be entitled to any commission or fee with respect
to this Lease or the Premises or the Property. Landlord and Tenant agree to
indemnify and hold the other harmless from any claim, demand, cost or
liability, including attorneys’ fees and expenses, asserted by any party other
than the brokers named in Article 1 based upon dealings of that party with
the indemnifying party. Landlord shall be responsible for the payment of any
brokerage fees to the Brokers named in Article 1. The provisions of this Section shall
survive the Term or early termination of this Lease.


 


17.12.     Applicable
Law and Construction


 


This
Lease may be executed in counterparts, shall be construed as a sealed
instrument, and shall be governed exclusively by the provisions hereof and by
the laws of the state where the Property is located without regard to
principles of choice of law or conflicts of law. A facsimile signature to this
Lease shall be sufficient to prove the execution by a party. The covenants of
Landlord and Tenant are independent, and such covenants shall be construed as
such in accordance with the laws of The Commonwealth of Massachusetts. If any
provisions shall to any extent be invalid, the remainder shall not


 


73

















 


be
affected. Other than contemporaneous instruments executed and delivered of even
date, if any, this Lease contains all of the agreements between Landlord and
Tenant relating in any way to the Premises and supersedes all prior agreements
and dealings between them. There are no oral agreements between Landlord and
Tenant relating to this Lease or the Premises. This Lease may be amended only
by instrument in writing executed and delivered by both Landlord and Tenant.
The provisions of this Lease shall bind Landlord and Tenant and their
respective successors and assigns, and shall inure to the benefit of Landlord
and its successors and assigns and of Tenant and its permitted successors and
assigns, subject to Article 13. As used herein, “non-monetary default”
shall mean a default that cannot be substantially cured by the payment of money.
The titles are for convenience only and shall not be considered a part of the
Lease. This Lease shall not be construed more strictly against one party than
against the other merely by virtue of the fact that it may have been prepared
primarily by counsel for one of the parties, it being recognized that both
Landlord and Tenant have contributed substantially and materially to the
preparation of this Lease. If Tenant is granted any extension or other option,
to be effective the exercise (and notice thereof) shall be unconditional; and
if Tenant purports to condition the exercise of any option or to vary its terms
in any manner, then the purported exercise shall be ineffective. The
enumeration of specific examples of a general provision shall not be construed
as a limitation of the general provision. Unless a party’s approval or consent
is required by the express terms of this Lease not to be unreasonably withheld,
such approval or consent may be withheld in the party’s sole discretion. The
submission of a form of this Lease or any summary of its terms shall not
constitute an offer by Landlord to Tenant; but a leasehold shall only be
created and the parties bound when this Lease is executed and delivered by both
Landlord and Tenant. Nothing herein shall be construed as creating the
relationship between Landlord and Tenant of principal and agent, or of partners
or joint venturers or any relationship other than landlord and tenant. This
Lease and all consents, notices, approvals and all other related documents may
be reproduced by any party by any electronic means or by facsimile,
photographic, microfilm, microfiche or other reproduction process and the
originals may be destroyed; and each party agrees that any reproductions shall
be as admissible in evidence in any judicial or administrative proceeding as
the original itself (whether or not the original is in existence and whether or
not reproduction was made in the regular course of business), and that any
further reproduction of such reproduction shall likewise be admissible. If any
payment in the nature of interest provided for in this Lease shall exceed the
maximum interest permitted under controlling law, as established by final
judgment of a court, then such interest shall instead be at the maximum
permitted interest rate as established by such judgment. The term “Term”
includes the Initial Term as it may be extended pursuant to Section 3.03.


 


ARTICLE 18. RIGHT OF FIRST OFFER


 


18.01.     Right of First Offer


 


From
and after the initial lease-up of the third floor of the Building (i.e., after
the third floor of the Building achieves 100% occupancy), Landlord agrees not
to enter into


 


74

















 


any
lease or leases for any available space on the third floor of the Building (in
each case, an “RFO Space”) without first giving Tenant an opportunity to
lease such space (“Right of First Offer”), provided however, that
Landlord shall not have to afford Tenant such opportunity, and the provisions
of this Section 18.01 shall not apply, if (i) Landlord is leasing
such space to tenants, or to any affiliates thereof, under extension or
expansion rights granted under leases executed by Landlord during the initial
lease-up of the RFO Space, or (ii) an Event of Default exists at the time
Tenant elects to exercise this Right of First Offer or at the time the RFO
Space would be added to the Premises. Notwithstanding anything in this Lease to
the contrary, in no event shall the rights under this Article 18 apply to (i) any
space offered to lease for use as a building amenity, such as a management
office or newsstand, or (ii) expansion, renewal or extension of leases by
tenants consistent with options to extend, renew or expand as may be provided
in any lease previously subject to an offer (or exempt from the obligation to
offer) to Tenant pursuant to this Article 18 or expansion, renewal or
extension of leases by tenants occupying or having rights in the RFO Space at
the time of the applicable Offer Notice (as defined below).


 


If
Landlord intends to enter into a lease for any RFO Space and is obligated to
first give Tenant an opportunity to lease such space hereunder, then Landlord
will deliver to Tenant a notice (the “Offer Notice”) that (i) specifies
the space that will be available (the “Offered Space”), the date on
which Landlord anticipates that the space will be available (the “Target
Delivery Date”), and the material business terms on which Landlord is
prepared to lease the Offered Space to the extent such material business terms
vary from the terms of the Lease, and (ii) offers to lease all of the
Offered Space to Tenant on the same business terms. If Landlord is prepared to
lease the Offered Space on more than one set of business terms (e.g., for
different terms of years at different rent rates), then Landlord may specify
alternative business terms in the Offer Notice.


 


If
Tenant delivers to Landlord, within fourteen (14) days following receipt of the
Offer Notice, an acceptance of such offer (which shall include an acceptance of
one of the proposed sets of business terms if the Offer Notice included
alternative sets of business terms), then the same shall constitute an
agreement to lease all of the Offered Space on the business terms set forth in
the Offer Notice, and within 15 days after acceptance of the offer the parties
shall enter into a lease amendment providing for the incorporation of the
Offered Space into the Premises on such business terms. If Tenant does not
accept such offer, then the Offered Space may be leased by Landlord to a third
party other than Tenant on terms no more favorable to such third party than
those in the Offer Notice, except that Landlord shall have the right to vary
the rent in said third-party lease by up to five (5%) percent of that specified
in the Offer Notice and said action shall not be deemed to be more favorable to
the third-party. In the event the rent decreases by more than five (5%) percent
or the Landlord otherwise changes the business terms from those set forth in
the Offer Notice in a manner materially more favorable to a third party,
Landlord shall re-offer the Offered Space to Tenant in the same manner, except
that Tenant must respond to Landlord within seven (7) days of the date
Landlord re-offers the Offered Space to Tenant.


 


75

















 


Landlord
shall endeavor to deliver any Offered Space leased by Tenant pursuant to this Section 18.01
on or before the Target Delivery Date specified in the Offer Notice. However,
Landlord’s failure to deliver, or any delay in delivering, the Offered Space
for any reason beyond Landlord’s reasonable control (including, without
limitation, continued occupancy by a prior occupant) shall not be a default of
Landlord or give rise to any liability of Landlord under the Lease, and shall
not affect the validity of the Lease or Tenant’s obligation to accept and lease
the Offered Space when delivered (except as Landlord and Tenant may mutually
agree at the time Landlord delivers the Offer Notice to Tenant).
Notwithstanding the foregoing, Landlord shall use diligent efforts to deliver
any Offered Space leased by Tenant, and in the event Landlord is unable to
deliver the Offered Space to Tenant on or before the date that is six (6) months
after the Target Delivery Date, Tenant shall not be obligated to lease the
Offered Space provided that within thirty (30) days after the end of said
six-month period, Tenant notifies Landlord in writing of its desire not to
lease the Offered Space.


 


18.02.     Tenant’s
Rights are Personal


 


Tenant’s
rights under this Article 18 are personal to the original Tenant named
hereunder and shall expire upon such time as the rights of Tenant are assigned
(other than to a Successor Entity) or greater than 50% percent of the then-
Premises are sublet (other than to a Related Entity).


 


18.03.     Additional
Limitations


 


This
Article 18 shall not be construed to grant to Tenant any rights or
interest in any RFO Space, and any claims by Tenant alleging a failure of
Landlord to comply with this Article 18 shall be limited to claims for
monetary damages and Tenant shall not assert any rights in any space on the RFO
Space nor file any lis pendens or similar notice with respect thereto.


 


ARTICLE 19. RIGHT OF FIRST REFUSAL


 


19.01.     Right of First Refusal


 


Tenant
shall have a one-time right of first refusal with respect to the portion of the
first floor of the Building shown on Exhibit 19.01, attached (“RFR
Space”). Tenant’s rights under this Section 19.01 shall apply to all,
but not less than all, of such space identified in Landlord’s RFR Notice (as
defined below). Notwithstanding the foregoing, Tenant’s rights of first refusal
under this Section 19.01 shall not apply to any space offered to lease for
use as a building amenity, such as a management office or newsstand. Prior to
entering into any letter of intent to lease (or, if no letter of intent is
executed, any lease of) at least 50% of the RFR Space that is subject to this Section 19.01,
Landlord shall provide written notice (the “RFR Notice”) to Tenant of
the date for the scheduled availability of the RFR Space in question, the
permitted uses for the RFR Space, the proposed use of the RFR Space to the
extent known by Landlord, and the terms of the proposed lease. If Landlord


 


76

















 


does
not offer all of the RFR Space to Tenant pursuant to the rights granted under
this Article 19, then any RFR Space remaining subject to this Article 19
shall be contiguous to the Premises (i.e. if Landlord elects to offer less than
all of the RFR Space to a third party and such offer does not trigger Tenant’s
rights hereunder because it constitutes less than 50% of the RFR Space, then
such offer may only include space that is not contiguous to the Premises).
Tenant shall notify Landlord (“RFR Acceptance
Notice”) within five (5) Business Days following
receipt of Landlord’s RFR Notice if it elects to lease the RFR Space on the
terms set forth in the RFR Notice. If Tenant does not timely elect to lease the
RFR Space as set forth above, then Landlord shall have the right to enter into
a lease consistent in material economic terms with the RFR Notice. In the event
(x) of any material change in the proposed economic terms (which shall be
deemed to mean a decrease in rent by more than 5%), or (y) that Landlord
has not entered into a lease for the portion of the RFR Space identified in the
RFR Notice within nine months after the date of the RFR Notice, Landlord shall
re-offer the RFR Space in question in accordance with the provisions of this Section 19.01,
except that the time in which Tenant shall be obligated to respond with respect
to any re-offer shall be three (3) Business Days. If Landlord enters into
a lease consistent with the material economic terms in the RFR Notice, then
Tenant’s rights under this Article 19 shall terminate and be of no further
force and effect.


 


Upon
Landlord’s receipt of an RFR Acceptance Notice, Landlord will prepare and
deliver to Tenant an amendment of this Lease identifying the RFR Space to be
occupied by Tenant and the other terms applicable to such occupancy. All the
agreements and conditions in this Lease contained herein shall apply to the RFR
Space, except as otherwise set forth in the RFR Notice (provided, however, that
the RFR Space shall not include a Finish Work Allowance and/or Additional
Allowance unless otherwise expressly provided in the RFR Notice). Within
fourteen (14) days after submission of an appropriate amendment to this Lease
by Landlord to Tenant incorporating the applicable RFR Space into this Lease
for the balance of the term hereof and any extension thereof, on the terms and
conditions set forth herein, Tenant and Landlord shall execute said amendment.


 


Notwithstanding
any provision of this Section to the contrary, Tenant’s rights under this Section shall
be void, at Landlord’s election, if Tenant is in default hereunder, after any
applicable notice and cure periods have expired, at any time prior to the time
Tenant makes any election with respect to the RFR Space under this Section or
at the time the RFR Space would be added to the Premises.


 


19.02.     Additional
Limitations


 


This
Article 19 shall not be construed to grant to Tenant any rights or
interest in any RFR Space, and any claims by Tenant alleging a failure of
Landlord to comply with this Article 19 shall be limited to claims for
monetary damages and Tenant shall not assert any rights in any space on the RFR
Space nor file any lis pendens or similar notice with respect thereto.


 


77














 


19.03.     Arbitration


 


All
disputes between the parties specifically referencing this Section 19.03
(so long as such reference is applicable) shall be resolved in accordance with
this Section 19.03. Any arbitration decision under this Section 19.03
shall be enforceable in accordance with applicable law in any court of proper
jurisdiction. If Landlord disputes Tenant’s right to deduct any amount of Base
Rent pursuant to Tenant’s express rights under Section 10.04(c)-2 of Exhibit 10.04(c) and if Landlord gives written notice
to Tenant of such dispute on or before the date ten (10) business days
after Landlord receives written notice from Tenant that Tenant intends to
exercise such right to deduct, then such dispute shall be resolved in an
arbitration proceeding pursuant to this Section 19.03 prior to any
deduction of disputed amounts by Tenant.


 


Either
party may give written notice of the dispute requesting resolution under this Section and
submit a reasonably detailed written statement of the position and reasons
therefor with such notice. The other party will, within ten (10) days of
receiving such written statement submit to the party initiating the dispute
resolution its own detailed written statement of the position and reasons
therefor. The president of Tenant and David Clem on behalf of Landlord (or such
other persons as Landlord or Tenant may designate by written notice to the
other) shall meet at the earliest mutually acceptable time and place, but in
any case within thirty (30) days of the date of response statement to attempt
to resolve the dispute. If the matter has not been resolved within thirty (30)
days of the date of the response statement, then either party may initiate
arbitration of such controversy by written notice to other (the “Arbitration Notice”). The
arbitration shall be held before a single arbitrator. The parties shall
endeavor to agree upon and name the arbitrator within the fifteen (15) day
period following the Arbitration Notice. If the parties fail timely to name the
arbitrator, then unless the parties agree in writing to another procedure for
designating the arbitrator, either party may by written notice given to the
other and to the Boston office of the AAA request that the arbitrator be
promptly chosen by the Boston office of the AAA. In any event, the arbitrator
shall be either a person with at least fifteen (15) years personal experience
as a partner, member or other principal of one or more major law firms with a
Massachusetts office (which for this purpose shall mean a law firm having at
least 75 attorneys) who has a principal specialty in real estate practice, or a
retired judge who has served on either the Massachusetts Land Court or the
Massachusetts Appeals Court or the Business Litigation Section; provided that
that the arbitrator shall not have had any business relationship with either
party or affiliates of either party for at least the then most recent ten (10) years,
all as determined by the person or persons designating such arbitrator. The
arbitrator shall commence the arbitration hearing within ten (10) days
after appointment, shall complete the arbitration hearing within thirty (30)
days after the date the arbitration hearing commenced, and shall render a
written arbitration decision within forty (40) days after the arbitration
hearing commenced, which time periods may be extended by written agreement of
the parties or by the arbitrator for good cause, with a decision issued, no
later then two weeks after the date that such dispute is submitted for
arbitration. The arbitration shall be conducted in accordance with then
existing, expedited procedures under the commercial arbitration rules of
the AAA; however, to the extent any


 


78

















 


provision
of this paragraph is inconsistent with such procedures, the provisions of this
paragraph shall govern. The arbitration shall only be administered by the AAA
if it chooses the arbitrator; otherwise it shall be administered by the
arbitrator. The decision of the arbitrator shall be final and binding upon the
parties and judgment upon the decision rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The parties shall equally
share and pay the costs of the arbitrator.


 


[BALANCE OF PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]


 


79

















 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  ROGERS
  STREET, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  The
  Lyme Timber Company, a New Hampshire limited partnership, its sole manager

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  Woodland
  Management Associates, LLC, a New Hampshire limited liability company, its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David Clem

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David
  Clem

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  



 


 


	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  MICROBIA,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael J. Higgins

  
	
   

  	
   

  	
  Name:

  	
  Michael
  J. Higgins

  
	
   

  	
   

  	
  Title:

  	
  SVP

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


80

















 


FIRST AMENDMENT TO LEASE


 


THIS
FIRST AMENDMENT TO LEASE (this “Amendment”) is entered into as of this 9th day of April, 2009, by and between BMR-ROGERS
STREET LLC, a Delaware limited liability company (“Landlord,” as
successor-in-interest to Rogers Street, LLC (“Original Landlord”)), and
IRONWOOD PHARMACEUTICALS, INC., a Delaware corporation (formerly known as
Microbia, Inc.) (“Tenant”).


 


RECITALS


 


A.          WHEREAS,
Original Landlord and Tenant entered into that certain Lease dated as of January 12,
2007 (the “Original Lease”), whereby Tenant leases certain premises from
Landlord at 301 Binney Street in Cambridge, Massachusetts;


 


B.           WHEREAS,
Landlord and Tenant desire to confirm the size of the Premises, the Office
Space, the First Floor Space, the First Lab Space and the Final Lab Space as
constructed in connection with Tenant’s performance of the Finish Work for each
aforementioned space;


 


C.           WHEREAS, Landlord
and Tenant desire to set forth the Rent Commencement Date for each of the
Office Space, the First Floor Space, the First Lab Space and the Final Lab
Space as constructed in connection with Tenant’s performance of the Finish Work
for each aforementioned space; and


 


D.          WHEREAS,
Landlord and Tenant desire to modify and amend the Original Lease only in the
respects and on the conditions hereinafter stated.


 


AGREEMENT


 


NOW,
THEREFORE, Landlord and Tenant, in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound, agree as follows:


 


1.           Definitions. For purposes
of this Amendment, capitalized terms shall have the meanings ascribed to them
in the Original Lease unless otherwise defined herein.


 


2.           Building Square
Footage. The square footage of the Building is four hundred
seventeen thousand two hundred ninety (417,290) rentable square feet.


 


3.           Measurement
Standard. Pursuant to Section 2.01(e)(ii) of
the Original Lease, the rentable area of the Premises has been remeasured in
accordance with the Measurement Standard and the remeasured rentable square
footage of the Premises is set forth on Exhibit A attached hereto. Exhibit 2.01(e) to
the Original Lease is hereby deleted in its entirety and replaced with Exhibit A
attached hereto. Landlord and Tenant acknowledge and agree that the
measurements reflected in this Amendment, including Exhibit A, are
the final and conclusive measurements for the Building, Premises and each Phase
under the Lease and Landlord waives its rights under the Lease, including Section 2.01,
to further remeasure the Building, Premises or any Phase. Notwithstanding
anything herein to the contrary, to the extent that there is a conflict between
the rentable area set forth in this


 

















 


Amendment
and that set forth on Exhibit A hereto, the information set forth
in this Amendment shall supersede.


 


4.           Premises. The square
footage of the Premises in its entirety shall be one hundred fourteen thousand
eighty-eight (114,088) rentable square feet. Exhibit 1.07 to the
Original Lease is hereby deleted in its entirety and replaced with Exhibit B
attached hereto.


 


5.           Office Space. The Office
Space consists of twenty thousand (20,000) rentable square feet on the second
floor of the Building. The Rent Commencement Date for the Office Space is January 7,
2008.


 


6.           First Floor
Space. The First Floor Space consists of eighteen thousand seventy-one
(18,071) rentable square feet of space on the first floor of the Building and
includes shaft and/or mechanical space in the basement and on the first,
second, third, fourth, fifth and penthouse levels of the Building. The Rent
Commencement Date for the First Floor Space is June 7, 2008.


 


7.           First Lab
Space. The First Lab Space consists of thirty-seven thousand two hundred
sixteen (37,216) rentable square feet on the second floor of the Building and
includes shaft and/or mechanical space in the basement and on the first,
second, third, fourth, fifth and penthouse levels of the Building. The Rent
Commencement Date for the First Lab Space is August 1, 2008.


 


8.           Final Lab
Space. The Final Lab Space consists of thirty-eight thousand eight hundred
one (38,801) rentable square feet on the second floor of the Building and
includes shaft and/or mechanical space on the second, third, fourth, fifth and
penthouse levels of the Building. The Rent Commencement Date for the Final Lab
Space shall occur on the earlier to occur of (x) January 1, 2011 or (y) the
date upon which Tenant first occupies all or any portion of the Final Lab Space
for the conduct of its business.


 


9.           Tenant’s Pro
Rata Share. Tenant’s Pro Rata Share shall be 28.78%.


 


10.         Finish Work
Allowance. Tenant’s total Finish Work Allowance shall be
Twelve Million Seven Hundred Sixty-One Thousand Dollars ($12,761,000).


 


11.         Letter of
Credit. Tenant shall deliver to Landlord a replacement Letter of Credit or an
amendment to the existing Letter of Credit in the amount of Five Million Two
Hundred Sixty-Nine Thousand Three Hundred Seventy-Two Dollars ($5,269,372),
representing the revised amount of the Letter of Credit due pursuant to Section 15.01
of the Lease as of the date of this Amendment (replacing the amount due under Section 15.01
of the Lease upon the submission of Tenant’s first requisition for Finish Work
Allowance amounts with respect to the First Lab Space). Effective as of the
date of this Amendment, the amount of the final Letter of Credit due upon the
submission of Tenant’s first requisition for Finish Work Allowance amounts with
respect to the Final Lab Space, as set forth in Section 1.14 and 15.01
of the Original Lease, shall increase by Ninety-Five Thousand One Hundred Six
Dollars ($95,106) for a total amount of Seven Million Six Hundred Sixteen
Thousand Eight Hundred Thirty-Three Dollars ($7,616,833.00).


 

















 


12.         Broker. Tenant and
Landlord each represents and warrants to the other that it has not dealt with
any broker or agent in the negotiation for or the obtaining of this Amendment
and agrees to indemnify, defend and hold the other harmless from any and all
cost or liability for compensation claimed by any such broker or agent employed
or engaged by it or claiming to have been employed or engaged by it for such
purposes.


 


13.         Effect of
Amendment. Except as modified by this Amendment, the Original
Lease and all the covenants, agreements, terms, provisions and conditions
thereof shall remain in full force and effect and are hereby ratified and
affirmed. The covenants, agreements, terms, provisions and conditions contained
in this Amendment shall bind and inure to the benefit of the parties hereto and
their respective successors and, except as otherwise provided in the Original
Lease, their respective assigns. In the event of any conflict between the terms
contained in this Amendment and the Original Lease, the terms herein contained
shall supersede and control the obligations and liabilities of the parties.
From and after the date hereof, the term “Lease” as used in the Original Lease
shall mean the Original Lease, as modified by this Amendment.


 


14.         Miscellaneous. This
Amendment becomes effective only upon execution and delivery hereof by Landlord
and Tenant. The captions of the paragraphs and subparagraphs in this Amendment
are inserted and included solely for convenience and shall not be considered or
given any effect in construing the provisions hereof. All exhibits hereto are
incorporated herein by reference.


 


15.         Counterparts. This
Amendment may be executed in one or more counterparts that, when taken
together, shall constitute one original.


 


16.         Authority. Landlord and
Tenant have all necessary and proper authority, without the need for the
consent of any other person or entity, to enter into and perform under this
Amendment.


 

















 


IN
WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands as of the
date and year first above written, and acknowledge that they possess the
requisite authority to enter into this transaction and to execute this
Amendment.


 


	
  LANDLORD:

  
	
   

  
	
  BMR-ROGERS
  STREET LLC, a Delaware limited liability company

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Kevin M. Simonsen

  	
   

  
	
   

  
	
  Name:

  	
  Kevin M. Simonsen

  	
   

  
	
  Title:

  	
  VP, Real Estate Counsel

  	
   

  



 


 


	
  TENANT:

  
	
   

  
	
  IRONWOOD
  PHARMACEUTICALS, INC., a Delaware corporation

  	
   

  
	
   

  
	
   

  
	
   

  
	
  By:

  	
  /s/
  J DeTore

  	
   

  
	
  Name:

  	
  J
  DeTore

  	
   

  
	
  Title:

  	
  VP,
  Finance